## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 30 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GREGORY WASHINGTON,

Plaintiff-Appellant,

v. OKLAHOMA STATE UNIVERSITY BOARD OF REGENTS, a public institution of higher education; 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. No. 96-6271 (D.C. No. CIV-95-818-C) (W.D. Okla.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. -2- ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

Plaintiff-appellant Gregory Washington, a former As sociate Vice President and Associate Professor at Oklahoma State University, appeals the district court’s grant of summary judgment in favor of all defendant s on his claims for employment discrimination and violation of his civi l rights. Because plaintiff has not shown a genuine issue of material fact regardin g the validity of his release of all claims arising from his employment with the uni versity, we affirm. ** Upon independent review of the record, we find the facts to be substantially as set forth in the district court’s memorandum opi nion, dated July 12, 1996. We review a grant of summary judgment de novo, applyin g the same standards as-3-

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 jud gment is appropriate if “there is no genuine issue as to anymaterial 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 the refrom 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 clai ms was invalid because it was procured by fraud. He argues that the universi ty president and provost lied when they told him there was evidence that he commi tted sexual harassment and that his conduct would be publicized. To show frau d, plaintiff must prove (1) a false (2) material misrepresentation (3) made with knowledge that it is false, or made as a positive assertion w ithout knowledge of whether it is true or false and (4) made with the i ntent to induce action in another (5) which does in fact induce suc h 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 is sue whether the university president and provost knowingly made false statements, or made false statements without regard to their veracity. The tape-recorde d conversation between plaintiff and the graduate student supports a conclusion thatplaintiff sexually harassed her, and that such conduct was actionable. See, e. g. , Franklin v. Gwinnett County-4-

Pub. Sch. , 503 U.S. 60, 75 (1992); Seamons v. Snow , 84 F.3d 1226, 1232 (10th Cir. 1996). Defendants’ belief that the harassmentwas not quid pro quo, or even that it might not be actionable, did not negate the ir basic belief that plaintiff, a married man in a position of authority over the stu dent, sexually harassed her by pressuring her to enter into a social relationship with him. Plaintiff also has not shown that statements regard ing the publicity he would face were false. There is no evidence, otherthan an inadmissible hearsay statement, that defendants threatened to create pub licity purposefully if plaintiff did not resign. There is evidence defendants state d that plaintiff would be terminated from his administrative position if he d id not resign and that the termination would probably generate rumors regardin g his conduct, especially if the graduate student brought a lawsuit. These stat ements 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 frau d may not be predicated on false statements when the allegedly defrauded partycould have ascertained the truth with reasonable diligence.”). Plaintiff argues also that the release was procuredthrough 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 prereq uisite to the finding of-5-

economic duress.” First Nat’l Bank & Trust Co. v. Kissee , 859 P.2d 502, 508 (Okla. 1993). In light of his misrepresentations t o the investigative committee and his conduct with the graduate student, plaintif f has not shown that the decision to terminate his administrative position w as unlawful or wrongful. Because plaintiff has not shown that the release wa s invalid, we need not decide whether he demonstrated a factual dispute as to racial discrimination. Even if the claim were not barred, however, the rec ord supports the district court’s conclusion that plaintiff failed to show th at 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 “s imilarly situated”). The judgment is AFFIRMED. Entered for the Court

Carlos F. Lucero Circuit Judge