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United States Court of Appeals,
Fifth Circuit.
No. 93-2850.
Jeffrey M. DUFFY, Plaintiff-Appellant,
v.
LEADING EDGE PRODUCTS, INC., Defendant-Appellee.
Feb. 13, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before GARWOOD, JOLLY and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
In this Texas law diversity action for defamation,
plaintiff-appellant Jeffrey Duffy (Duffy) alleges that his former
employer, defendant-appellee Leading Edge Products, Inc. (Leading
Edge), made false allegations of sexual harassment against him
which he was as a practical matter compelled to republish to
prospective employers. He challenges the district court's order
granting Leading Edge's motion for summary judgment. We conclude
that Duffy failed to present sufficient evidence of actual malice
to overcome Leading Edge's qualified privilege and therefore
affirm.
Facts and Proceedings Below
On April 13, 1992, Duffy was fired by Leading Edge for, he was
told, sexually harassing two female co-workers. The allegations
arose out of two separate incidents. Although there are some
discrepancies in the details of these encounters, neither party
1

disputes the basic facts, or that the events actually occurred.
The first incident occurred in September 1991, when Duffy and
Leading Edge employee Linda Morse (Morse) were working together at
a convention in Dallas, Texas. When the convention ended, Duffy
and Morse celebrated at the hotel bar; both eventually became
intoxicated. At the end of the evening, Morse followed Duffy to
his room to get some aspirin. There, Duffy and Morse kissed
briefly but stopped after Morse insisted that she did not feel
right about what they were doing. Duffy agreed, and Morse left.
She did not tell anyone else about the incident until some months
later, when she revealed to Leading Edge manager Margaret Cardamone
(Cardamone) that Duffy had "made a pass" at her.
The second incident occurred in the early hours of April 6,
1992. Duffy and other Leading Edge employees, including Jill
DiVirgillio (DiVirgillio), were participating in a trade show in
Chicago. Earlier in the evening, following a company-sponsored
happy hour, Duffy had accompanied DiVirgillio to her hotel room
while she dropped off some sodas. Duffy and DiVirgillio had then
returned to the hotel lounge but did not see each other for the
rest of the evening. Some time around midnight, after DiVirgillio
had returned to her room for the evening, Duffy knocked on her
door. He told DiVirgillio that he had lost his room key and
thought he might have dropped it when he was in the room earlier.
DiVirgillio let him in to search for the key. While searching
around the bed (on which DiVirgillio was sitting), Duffy made some
movement towards DiVirgillio. Duffy says he put his hands on top
2

of hers; DiVirgillio describes him as lunging towards her as if to
get on top of her. DiVirgillio said "no," and Duffy then left the
room.
DiVirgillio reported this incident to Cardamone on April 6.
Cardamone relayed the story, and the incident involving Morse, to
Leading Edge's president, Al Agbay (Agbay). On April 9, Agbay
contacted Leading Edge's manager of human resources, Linda
DiStefano (DiStefano). Agbay indicated that he wanted Duffy
terminated because what he had done was "almost as bad as date
rape." He told DiStefano to investigate the incidents.
DiStefano conducted her investigation on Friday, April 10.
She spoke to DiVirgillio, Morse, Cardamone, and Duffy by phone
concerning the incidents. DiStefano reported that both DiVirgillio
and Morse were "visibly upset" when discussing these incidents,
that neither woman seemed to be deceiving her, and that neither had
any motive to fabricate a story simply to get Duffy in trouble.
DiStefano also called the hotel where Duffy and DiVirgillio had
stayed in Chicago and asked about the procedure for issuing new
room keys. Although Duffy had told DiStefano that he was issued a
new key at the front desk after being unable to find his key in
DiVirgillio's room, the hotel informed her that no new room keys
had been issued on April 5 or 6.1 DiStefano concluded that "a
1Duffy called DiStefano back on Monday, April 13, and
changed his story regarding the new key. According to
DiStefano's report of the conversation, "Jeff said he took out
his license to show the desk attendant for identification.
According to Jeff, he said the desk attendant found his key
behind his business card (which was in his wallet)? Jeff said
that after the desk attendant punched some numbers into his
3

pattern of sexual advancement appears evident with Jeff" and
recommended that he "be terminated immediately for sexual
harrassment [sic]." Duffy was fired on April 13, 1992.
Duffy filed suit against Leading Edge on the theory of
compelled self-publication defamation.2 He claims that Leading
Edge should be accountable for damages because it was reasonably
foreseeable that he would as a practical matter be required to tell
prospective employers of the allegedly defamatory reason for his
computer he handed Jeff the key to his room, which Jeff said he
thought was a new key." DiStefano also noted that in their
earlier conversation, Duffy had referred to the desk clerk using
the feminine person, whereas in the conversation of April 13, he
used the masculine person. DiStefano referred to these
discrepancies in Duffy's story, as well as her belief that "[t]he
weekend would provide Jeff with ample time to think of another
explanation for the incident," as being part of her determination
that Duffy should be terminated.
2The suit was originally filed in a Texas court and was
removed to the district court below on the basis of diversity of
citizenship.
Duffy amended his complaint in July 1993 after
discovery revealed that, in response to concerns that had
been expressed about DiVirgillio's absence from the trade
show on the morning of April 6, Cardamone told several
female employees that DiVirgillio had been involved in a
"run-in" with a male co-worker. Word later spread among the
employees that Duffy had been involved. Because Duffy does
not pursue this aspect of his complaint on appeal, we will
not address it.
Duffy does not complain of his firing. Texas is an
"employment-at-will" jurisdiction, and absent contract
provisions otherwise, an employer, with narrow exceptions,
may discharge an employee for any reason or for no reason at
all. See, e.g., Pease v. Pakhoed Corp., 980 F.2d 995, 1000
(5th Cir.1993). Duffy does not allege any contractual
modification of the otherwise applicable
"employment-at-will" doctrine, nor the presence in this case
of any exception to it.
4

termination.3 Although he agrees with Leading Edge that it had a
qualified privilege to make the statements, which would extend to
his republication of them, he contends that Leading Edge lost that
privilege because it acted with malice. He attributes malice to
Leading Edge on three bases: 1) that DiStefano's investigation was
"completely inadequate and reckless"; 2) that DiStefano's
investigation was a mere pretext for the decision to fire Duffy;
and 3) that Leading Edge, which did not have a sexual harassment
policy until after Duffy was terminated, failed to make an adequate
determination of what conduct constituted sexual harassment before
applying that label to Duffy's conduct. The district court,
however, determined that Leading Edge was protected both by its
qualified privilege and by the absolute defense of truth.4 It
therefore granted summary judgment for Leading Edge. Duffy now
appeals that order.
Discussion
I. Standard of Review
We review a grant of summary judgment de novo, using the same
standards as the district court. Hansen v. Continental Insurance
Co., 940 F.2d 971, 975 (5th Cir.1991). Summary judgment is
3DiStefano's report notes that Duffy was advised verbally of
the reasons for his termination and that "as a favor to Jeff, we
should not put his reason for termination in writing ... in order
not to jeopardize him, his family, or his career." At oral
argument, counsel for Leading Edge acknowledged that a copy of
this report may be part of Duffy's personnel file.
4Because we hold that Duffy's claim fails for lack of proof
of actual malice, we do not address the district court's
determination that the statements were absolutely privileged as
true.
5

appropriate when the record reflects that "there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving
party bears the initial burden of showing that there is no genuine
issue for trial; it may do so by pointing out " "the absence of
evidence supporting the nonmoving party's case.' " Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.), cert. denied,
--- U.S. ----, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992) (citation
omitted). If the moving party meets this burden, the nonmoving
party who will have the burden of proof at trial must come forward
with summary judgment evidence establishing the existence of a
genuine issue; that evidence must be such that if introduced at
trial it would suffice to prevent a directed verdict against the
nonmovant. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct.
2548, 2552, 91 L.Ed.2d 265 (1986). Although we consider the
evidence in the light most favorable to the nonmoving party,
Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178
(5th Cir.1990), cert. denied, --- U.S. ----, 114 S.Ct. 171, 126
L.Ed.2d 131 (1993), conclusory allegations unsupported by concrete
and particular facts will not prevent an award of summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986).
II. Qualified Privilege
Under Texas law, "[a] communication on a subject in which the
author or the public has an interest, or with respect to which the
author has a duty to perform to another owing a corresponding duty,
6

may constitute a qualified or conditional privilege." Marathon Oil
Co. v. Salazar, 682 S.W.2d 624, 630 (Tex.App.--Houston [1st Dist.]
1984, writ ref'd n.r.e.). References and accusations made by an
employer about an employee to one with a common interest clearly
come within this doctrine. See Pioneer Concrete of Texas, Inc. v.
Allen, 858 S.W.2d 47, 49 (Tex.App.--Houston [14th Dist.] 1993, writ
denied); Schauer v. Memorial Care Systems, 856 S.W.2d 437, 449
(Tex.App.--Houston [1st Dist.] 1993, no writ). The interest giving
rise to the privilege may be that of the publisher of the
statement, the recipient, or a third person. Pioneer Concrete, 858
S.W.2d at 50.
Neither party disputes that Leading Edge had a qualified
privilege to make the allegedly defamatory statement regarding
Duffy, a privilege that would extend to any republication by him.5
5We assume arguendo, but do not decide, that there was a
publication in this case. The parties have argued extensively in
their briefs the question whether compelled self-publication
defamation is a viable cause of action in Texas. Although the
general rule in Texas is that a plaintiff cannot complain of a
defamation that he "consented to, authorized, invited or
procured," Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772
(1945), some Texas appellate courts have recognized a limited
exception when the plaintiff is compelled to repeat the
statement. Chasewood Construction Co. v. Rico, 696 S.W.2d 439
(Tex.App.--San Antonio 1985, writ ref'd n.r.e.); First State Bank
of Corpus Christi v. Ake, 606 S.W.2d 696 (Tex.Civ.App.--Corpus
Christi 1980, writ ref'd n.r.e.); see also Purcell v. Seguin
State Bank and Trust Co., 999 F.2d 950, 959 (5th Cir.1993)
(noting that "Texas courts ... recognize the narrow exception of
self-compelled defamation"). Recently, however, another Texas
court of appeals refused to recognize this exception. Doe v.
SmithKline Beecham Corp., 855 S.W.2d 248, 259 (Tex.App.--Austin
1993), writ granted, No. D-4131 (Tex. Feb. 2, 1994). Doe notes
that Restatement (Second) of Torts � 577, cmt. m, requires that
the defamed person be unaware of the defamatory nature of the
statement when making the complained of republication. See also
Rico, at 449 (Reeves, J., dissenting). We consider the question
7

The question is whether Leading Edge acted with malice, thereby
losing its qualified privilege.
III. Malice
A. Definition of Malice
Our first task is to determine what definition of malice the
Texas courts would apply in this case. Under the common law
definition, "[m]alice has been defined as ill will, bad or evil
motive, or such gross indifference or reckless disregard of the
rights of others as to amount to a willful or wanton act."
Marathon Oil Co., 682 S.W.2d at 631. "Actual malice," a term of
art developed in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct.
710, 11 L.Ed.2d 686 (1964), and its progeny, is somewhat different:
"Actual malice is not ill will; it is the making of a
statement with knowledge that it is false, or with reckless
disregard of whether it is true. "Reckless disregard' is
defined as a high degree of awareness of probable falsity, for
proof of which the plaintiff must present "sufficient evidence
to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his
publication.' An error in judgment is not enough." Carr v.
Brasher, 776 S.W.2d 567, 571 (Tex.1989) (citations omitted).
This is a higher standard than common law malice; only clear and
convincing proof will support recovery. Howell v. Hecht, 821
S.W.2d 627, 630 (Tex.App.--Dallas 1991, writ denied). Negligence,
lack of investigation, or failure to act as a reasonably prudent
person are insufficient to show actual malice. Shearson Lehman
Hutton, Inc. v. Tucker, 806 S.W.2d 914, 924 (Tex.App.--Corpus
still open in Texas. Because we find that Duffy has failed to
sustain his burden with respect to actual malice, however, it is
not necessary for us to decide whether Texas would recognize a
publication on the facts presented here.
8

Christi 1991, writ dismissed w.o.j.); Marathon Oil Co., 682 S.W.2d
at 631.
Duffy argues that the actual malice standard implicates
values unique to the First Amendment and should be confined to
cases involving free speech concerns.6 Texas case law does not
support such an interpretation. In Dun and Bradstreet, Inc. v.
O'Neil, 456 S.W.2d 896 (Tex.1970), the defendant, a mercantile
credit reporting agency, was sued for defamation for erroneously
reporting to its subscribers that the plaintiff had voluntarily
filed for bankruptcy. Id. at 898. Finding that the defendant
enjoyed a qualified privilege because of its contractual duty to
report such information to its subscribers, id. at 899, the Texas
Supreme Court held that
"[t]he New York Times definition of actual malice which this
Court applied in El Paso Times is likewise applicable in the
instant case, all three cases being libel suits, all three
cases involving publishers' privileges and all three cases
requiring malice to overcome the privileges. Insofar as the
definition of actual malice is concerned we do not think the
instant
case
involving
a
conditional
privilege
is
distinguishable from the New York Times and El Paso Times
cases
which
involve
First
Amendment
Constitutional
privileges." Id. 456 S.W.2d at 900-01.
Duffy's assertion that the common law definition of malice
should apply to employer-employee cases therefore misses the mark;
6At oral argument, Duffy referred the panel to Vandenburg v.
Newsweek, Inc., 507 F.2d 1024 (5th Cir.1975), a case not cited in
his brief. He contends that Vandenburg supports his position.
We find this claim tenuous. Although Vandenburg does discuss in
some depth the free speech rationale behind the New York Times
test, see id., 507 F.2d at 1026, the Court in that case had no
occasion to discuss the application of that test to other types
of qualified privileges. If it had, the Texas Supreme Court's
holding in Dun and Bradstreet, see discussion infra, would have
been controlling.
9

the appropriate reference point is whether, regardless of who the
parties are, a qualified privilege exists. Where it does, actual
malice must be shown. Shearson Lehman Hutton, Inc., 806 S.W.2d at
924; Marathon Oil Co., 682 S.W.2d at 631. See also Ryder Truck
Rentals v. Latham, 593 S.W.2d 334, 341 (Tex.Civ.App.--El Paso 1979,
writ ref'd n.r.e.); Mayfield v. Gleichert, 484 S.W.2d 619, 627
(Tex.Civ.App.--Tyler 1972, no writ); Restatement (Second) of Torts
� 600.
B. Evidence of Malice
As noted above, federal procedural rules require the entry of
summary judgment against the nonmoving party "who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp., 477 U.S. at 321, 106
S.Ct. at 2552. Texas law places the burden of proof at trial with
respect to malice on the plaintiff. Dun and Bradstreet, 456 S.W.2d
at 898. Unlike the Texas courts in summary judgment cases,
therefore, we require that Duffy prove malice, rather than that
Leading Edge establish absence of malice, to survive Leading Edge's
proper summary judgment motion. Compare Lesbrookton, Inc. v.
Jackson, 796 S.W.2d 276, 286 (Tex.App.--Amarillo 1990, writ denied)
(refusing to adopt the Celotex standard because "under the Texas
summary judgment scheme, the non-movant has no burden to produce
proof of an element of his cause of action until that element has
been conclusively negated by movant").
Duffy has not met his burden in this regard. Under the
10

actual malice standard, a determinative factor is whether the
defendant entertained serious doubts as to the truth of the
communication; the privilege is not lost if the defendant actually
believed the defamatory statement to be true. Schauer, 856 S.W.2d
at 449. See also Halbert v. City of Sherman, Texas, 33 F.3d 526,
530 (5th Cir.1994) (falsity of allegedly defamatory statement is by
itself insufficient to show actual malice). Nothing in the record
would support a finding that DiStefano did not actually believe
Morse and DiVirgillio to be telling the truth. To the contrary,
her report reflects that she believed both women to be sincere.
Although Duffy presents a fuller account of what transpired, he has
not shown that when DiStefano wrote her report she had a high
degree of awareness that the underlying facts as reported to her
were probably false.
Of course, "[p]rofessions of good faith will be unlikely to
prove persuasive ... where a story is fabricated," St. Amant v.
Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262
(1968), but we find no evidence of fabrication here. The record
amply supports the conclusion that DiStefano reported, without any
substantial or material inaccuracy, what she was told during the
investigation. There is no evidence which would support a contrary
finding. The facts as described by Morse in her deposition7 and
7During her deposition, Morse had the following exchange
with counsel for Leading Edge:
"Q: Okay. Now that you have had an opportunity to read
Linda DiStefano's account of her conversation with
you involving the incident with Jeffrey Duffy,
would you agree that this is what you told Linda
11

DiVirgillio in her affidavit8 support the version of events
DiStefano recounts in her report of the investigation.9
DiStefano?
A: Yes. I don't remember exactly what I--exact words
that I used by essentially--
....
Q: Okay. Let me clarify one thing. I just want to
make sure that the record is clear. You did tell
Linda DiStefano when she called you about your
incident with Jeffrey Duffy that you told Jeff no,
that you--that the kiss was not voluntary and that
no further incident took place, is that correct?
A: I did tell her that, yes."
Counsel for Duffy then took over the questioning:
"Q: There have been some other things that have come
out in your deposition today that are not at least
contained within that written paragraph?
A: That's right.
Q: But nevertheless did you discuss these other things
that have come out today with Linda DiStefano?
A: Not at the time that I gave her that statement,
no."
8The affidavit stated, in relevant part,
"I heard a knock on the door and asked who it was. Mr.
Duffy responded that he needed to see if he could
locate his key. I put my robe on, answered the door,
and then sat on the bed while Mr. Duffy searched the
room. I recall him picking up a hotel book sitting on
the night stand, beside the bed, and asking me if I had
read it. Shortly thereafter, he lunged towards me,
which caused me to lean back and land on my elbows.
Thereafter, I lifted one (1) hand towards him and said,
"No.' Mr. Duffy responded, "No?' I then suggested
that he go to the front desk to get a key."
9DiStefano's report of her conversation with DiVirgillio
reads,
12

Duffy complains that the investigation was inadequate, but
this by itself is clearly not sufficient to show actual malice. El
Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 406 (Tex.1969);
Shearson Lehman Hutton, Inc., 806 S.W.2d at 924; Marathon Oil Co.,
682 S.W.2d at 631; Mayfield, 484 S.W.2d at 627. Arguably, we
might be more persuaded by his insistence that the investigation
was a mere pretext for a decision that had already been made to
terminate him if there were some evidence of ulterior motive.10 The
"Jill said she was in bed when at approximately 12:30-
1:00 a.m., she heard a knock on her door. Jill said
she asked who it was and Jeff said, "It's me Jeff, I
think I left my key in your room.' Jill said she
opened the door and let Jeff into the room to look for
the key.... Jill said that when Jeff enterred [sic]
the room, he went from the doorway to the bureau, to
the TV stand, to the bedside table, where no keys were
found. Jill said that Jeff asked her if she ever read
the Hilton Book that was on the bedside table. Jill
said, no. According to Jill, Jeff then walked around
to the side of the bed where Jill was sitting and
approached her as if to get on top of her. Jill said
she put up her hands and said no Jeff. Jeff left the
room with no further incident."
The report recounts the following conversation with
Morse:
"Linda said when Jeff shut the door, she turned toward
him and that is when Jeff kissed her. According to
Linda the kiss was not voluntary and that she did not
kiss him back or kiss him several times. Linda said
she told Jeff no, and no further incident took place."
10Although we recognize that proof of ill will or animosity
is not required to show actual malice, Tucker, 806 S.W.2d at 924,
evidence of ulterior motive can often bolster an inference of
actual malice. For example, in Frank B. Hall & Co. v. Buck, 678
S.W.2d 612 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd
n.r.e.), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d
720 (1985), the plaintiff (Buck) sued his former employer for
defamation based, inter alia, on comments made by the company's
office manager (Eckert) to a "prospective employer" (actually a
private detective hired by the plaintiff after he was unable to
13

record, however, is devoid of any evidence that Leading Edge
fabricated these charges or that the decision was based on anything
other than these two incidents as reported to DiStefano.11 Duffy
himself admitted in his deposition that he did not believe that
Leading Edge had any undisclosed motivation in firing him.12
find a new job). The evidence showed that "the relationship
between Eckert and Buck was strained at best." Id. at 620. For
example, Buck had refused to testify favorably for Eckert in a
lawsuit in which Eckert was involved. The evidence also revealed
that Eckert, although nominally higher in the office hierarchy
than Buck, received only half the salary Buck was paid, and
without commissions or profit sharing benefits. Id. Despite
Eckert's testimony that "he never said anything about Buck that
he believed to be untrue," the court upheld the jury finding of
actual malice because "the jury was entitled to disbelieve the
profession of good faith. The jury was entitled to believe that
Eckert harbored animosity toward Buck...." Id. at 621.
11Nor do we think that Agbay's reported comment that Duffy's
behavior was "almost as bad as date rape" changes our conclusion.
Agbay did not purport to know anything about the events
personally, and DiStefano undoubtedly knew this. The comment
simply reflects that, based on what Agbay had heard, Agbay's
opinion was that Duffy's conduct was "almost as bad as date
rape." If anything, this tends to show that Leading Edge did not
have an ulterior motive, and did believe what had been reported.
12Duffy's deposition testimony was as follows:
"Q: Well, I'm just saying, did you have any reason to believe
that there were other motives in firing you other than the
alleged incidents?
A: No, I don't think so.
Q: Okay. Do you think that anyone at Leading Edge was just using
that as an excuse to get rid of you?
A: I have no idea.
Q: Okay. And I just want to make sure I understand that it's not
your contention that anybody lied about the incidents for the
reason that they just wanted to get rid of you for some other
reason.
A: That's correct.
14

Duffy also claims that actual malice is shown from the fact
that neither of these two incidents, either alone or together,
would constitute sexual harassment under current Supreme Court
interpretations of Title VII. Duffy's interpretation of Title VII
may well be correct; we are nevertheless not persuaded by his
argument. Although "sexual harassment" has a particular meaning in
Title VII litigation, it also has a vernacular meaning that
encompasses a far broader range of misconduct than would be
actionable under Title VII.13 There is no basis to conclude that
Leading Edge did not believe that Duffy had engaged in sexual
harassment in this vernacular sense. Leading Edge did not tell
Duffy that he was being fired for violating Title VII or that
retaining him would be a violation of Title VII. Moreover, Title
VII does not protect employees from being discharged for misconduct
that would not be actionable under Title VII. Nor does it restrict
....
Q: Do you believe that there was any ill will in getting rid of
you
at Leading Edge?
A: If you can define this as being ill will, that they originally
thought that I had--that I had committed sexual harassment, and
then they just needed to investigate it to carry it out to say
that they investigated it.
Q: I guess what I'm saying is, do you think that anybody just
concocted that for the excuse to fire you?
A: No, I don't think so."
13We doubt whether sexual harassment in this vernacular
sense could even be the subject of a defamation. Such a
characterization may well be no more than an opinion, which is
not actionable. See Howell, 821 S.W.2d at 631.
15

employers in the types of actions they can take to remedy behavior
that, while it may not create a legal cause of action under Title
VII, in their opinion creates an undesirable working environment.
Thus, although Leading Edge may well have been hasty or
ultimately mistaken in its decision, we do not think that the
evidence suffices to allow a finding that it acted with actual
malice when it accused Duffy of sexual harassment. Because Duffy
failed to meet his burden of proof with respect to this element of
his claim, the district court was correct in granting summary
judgment for Leading Edge.
Conclusion
For these reasons, the judgment of the district court is
AFFIRMED.

16