ACHEN-GARDNER, INC., an Arizona corporation, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable David L. Roberts, a Judge thereof, Respondent Judge, CITY OF CHANDLER, a municipal corporation, and Jeri-Co Group, Inc., an Arizona corporation, Real Parties in Interest.
No. CV-90-0404-PR.Supreme Court of Arizona.
May 21, 1992. Order Granting in part, Denying in part, Motion for Reconsideration and Amending Opinion July 14, 1992.
Appeal from the Superior Court, Maricopa County, No. CV 90-90600, David L. Roberts, J.
Morrison Hecker by Mark A. Nadeau, David L. Abney, Stephen B. White and Scott T. Forland, Phoenix, for petitioner.
Dennis M. O’Neill, Chandler City Atty., Chandler, for real party in interest City of Chandler.
Beshears by Larry L. Smith and Jeffrey B. Smith, Phoenix, for real party in interest Jeri-Co Group, Inc.
Snell Wilmer by Jerril F. Kaplan, James R. Condo, E. Jeffrey Walsh and Nancy A. Stratta, Phoenix, for amicus curiae Associated Gen. Contractors of America-Arizona Bldg. Chapter.
Shelley Bethea by J. LaMar Shelley, Mesa, for amicus curiae League of Arizona Cities and Towns.
The City of Chandler (Chandler) and Jeri-Co Group, Inc. (Jeri-Co) petition for review of the court of appeals’ opinion granting special action relief to Achen-Gardner, Inc. (Achen-Gardner). Achen-Gardner v. Superior Court, 167 Ariz. 536, 809 P.2d 961 (Ct.App. 1990). We granted review to determine the relationship between Arizona’s competitive bidding laws (A.R.S. § 34-101 et seq.) and Arizona’s development agreement law (A.R.S. § 9-500.05), an issue of first impression. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5, and Rule 8, Ariz.R.P.Spec. Act., 17B A.R.S.
resulting from the “(i) operation of any Wal-Mart store . . . and (ii) operation of any retail stores which are located upon the Property and have a size of at least 20,000 square feet of gross leasable area.” Chandler’s obligation to make payments was to cease upon full reimbursement but, in any event, no later than December 31, 1992.
The Agreement further provided that D.W.C. was to award the contract for the off-site improvements “to [the] lowest reasonable bidder; if for some reason Developer rejects bid, then Developer pays the difference between lowest bid and bid selected.” Chandler’s reimbursement obligation was thus limited to the amount of the lowest reasonable bid whether or not that bid was accepted. D.W.C. subsequently assigned its interest in the Agreement to Jeri-Co and is not a party to this action.
In November 1989, Achen-Gardner received a “Notice of Call for Bids,” on City of Chandler letterhead, requiring that bids for performing the off-site improvements be submitted to the Chandler purchasing office no later than December 18, 1989. A representative of Achen-Gardner attended a pre-bid conference at the Chandler purchasing office, and Achen-Gardner later submitted a timely bid. When the bids were opened, Achen-Gardner’s bid of $394,553.87 was approximately $31,000 lower than the only other bid. Chandler’s engineer recommended to Jeri-Co that it award the contract to Achen-Gardner, and Chandler informed Jeri-Co that, pursuant to the Agreement, Jeri-Co would be reimbursed for the off-site improvements only up to the $394,553.87 bid by Achen-Gardner, regardless of who ultimately performed the work.
Jeri-Co refused to award the contract to Achen-Gardner and eventually decided to perform the work itself. After several attempts to obtain the contract, Achen-Gardner brought a special action in superior court seeking an order enjoining the actions of Chandler and Jeri-Co and awarding the contract to Achen-Gardner. The superior court denied Achen-Gardner relief, explaining that “[n]o reason has been shown as to why the developer must comply with the competitive bidding statute in awarding the contract.” The court stated that “the City and the public are protected by the bidding procedures used because reimbursement is limited to the amount of the low bid.” Minute Entry, April 13, 1990, at 2.
Achen-Gardner then filed a petition for special action in the court of appeals, which accepted jurisdiction and reversed the decision of the superior court. The court of appeals held that the off-site improvements were “structures,” and therefore the project was subject to Arizona’s competitive bidding laws Achen-Gardner, 167 Ariz. at 539-44, 809 P.2d at 964-69. The court enjoined Chandler from reimbursing Jeri-Co for the off-site improvements unless Jeri-Co complied with the competitive bidding law. The court also awarded Achen-Gardner its costs and attorneys’ fees. Id. at 545, 809 P.2d at 970.
3. Whether the court of appeals, in holding that the requirements of Title 34 apply to development agreements entered into pursuant to A.R.S. § 9-500.05, misinterpreted and improperly applied the public policy underlying competitive bidding statutes.
84, 299 P.2d 1071, 1075 (1956); 10 Eugene McQuillin, LAW OF MUNICIPAL CORPORATIONS § 29.31 (3rd ed. 1990) (hereinafte McQuillin). Whether competitive bidding is required thus depends on the “proper construction of the applicable law.” 1 McQuillin § 29.32.
We believe that A.R.S. §§ 34-201 and 34-102 must be construed together “in order to derive [their] true meaning.”Secrist v. Diedrich, 6 Ariz. App. 102, 105-06 n. 1, 430 P.2d 448, 451-52 n. 1 (1967). From the plain language of the statutes, we conclude that proposed work encompasses at least buildings and structures. See id. at 106, 430 P.2d at 452 (in enacting the competitive bidding statute, the legislature “was intending to affect all contracts for the construction of buildings and structures, or alterations thereto, which are of such substance as to require working drawings and specifications. . . .”); see also § 34-202(A) (“Proposals for construction o buildings or structures . . . shall be accompanied by bids for all of the proposed work”).
In its petition for review, Chandler appears to agree that the competitive bidding laws apply to buildings and structures, but argues — along with amicus Arizona League of Cities and Towns (the League) — that the court of appeals erred in concluding that the street improvements in question are structures. We disagree.
for the proposition that landscaping was covered by the competitive bidding law. See Achen-Gardner, 167 Ariz. at 540, 809 P.2d at 965. Chandler is correct that the court of appeals i Secrist expressly refrained from “pass[ing] upon whether the `landscaping’ work . . . constitutes the construction of a `. . . building or structure. . . .'” Secrist, 6 Ariz. App. at 106, 430 P.2d at 452. In addition, we agree with Chandler that City of Phoenix v. Wittman Contracting Co., 20 Ariz. App. 1, 509 P.2d 1038 (1973), a case interpreting the “public funds” language in A.R.S. § 34-241, does not help to determine whether the off-site improvements at issue are structures.
bond requirements). We agree with such interpretations and believe that the legislature’s use of the broad term structure reflects an intent that the bidding laws be applied to a broad range of situations. We note also that the legislature has amended the bidding statutes many times over the decades since its enactment and has never removed or replaced the word “structure” with one of more finite meaning.
Finally, the purposes of competitive bidding are “to promote competition, to guard against favoritism, fraud and corruption, and to secure the best work or supplies at the lowest price practicable.” Rollo v. City of Tempe, 120 Ariz. 473, 474, 586 P.2d 1285, 1286 (1978); see also 10 McQuillin § 29.29. Given the purposes of the bidding statute (which are as relevant to the construction of public streets as to the construction of public buildings), the legislature’s use of the general term “structure” rather than a narrower term, and the broad definition of the word “structure” in the case law, we conclude that the improvements in question are structures within the scope of the competitive bidding laws.
A. A municipality, by resolution or ordinance, may enter into development agreements relating to property in the municipality and to property located outside the incorporated area of the municipality.
(g) Conditions, terms, restrictions and requirements for public infrastructure and the financing of public infrastructure and subsequent reimbursements over time.
Chandler, Jeri-Co, and the League posit two arguments for the proposition that the development agreement renders the competitive bidding laws inapplicable. First, they argue that the off-site construction was part of the private development and not a public project requiring competitive bidding. Second, they argue that the development agreement law supersedes and provides an exception to the competitive bidding law.
Co. v. Industrial Comm’r, 40 A.D.2d 1003, 338 N.Y.S.2d 751, 753-54 (1972) (contract for installation of street light standards is public work under wage law where city had option to purchase the equipment from utility), aff’d, 34 N.Y.2d 725, 357 N.Y.S.2d 493, 313 N.E.2d 787 (1974), with Alaska State Fed’n of Labor v. State, 713 P.2d 1208, 1210-11 (Alaska 1986) (provision of labor law relating to public construction not applicable to construction of community center funded in minor part by state grant where center not owned or controlled by state), and Hughes v. Schaefer, 294 Md. 653, 452 A.2d 428, 434-35 (1982) (under municipal development loan program, “City financing of construction to be let by the borrower, and not by the City, on the borrower’s own land and for the borrower’s own use is not a `public work'” requiring public bidding) (emphasis added).
Second, under the development agreement, the city is to reimburse Jeri-Co for most or all of the cost of the improvements from public funds. Cf. Erie County Indus. Dev. Agency v. Roberts, 94 A.D.2d 532, 465 N.Y.S.2d 301, 306 (1983) (private construction project financed by industrial development bonds not public work for purposes of wage laws where “[n]o public funds are involved and no costs will be reimbursed by the government”) aff’d, 63 N.Y.2d 810, 482 N.Y.S.2d 267, 472 N.E.2d 43 (1984). Jeri-Co disputes this characterization of the funds for reimbursement, contending that “there is no burden whatsoever on the public treasury since the entire reimbursement must come from sales tax revenues generated by the businesses operating in the development.” We are not persuaded. While it is possible that the tax revenue might never have existed without the development, once the development is undertaken the method of reimbursement cannot alter the fact that Jeri-Co will be reimbursed from tax money paid by the public with funds destined for and routed through the municipal treasury. Compare Yohe v. City of Lower Burrell, 418 Pa. 23, 208 A.2d 847, 850 (Pa. 1965) (“The need for bidding requirements is just as compelling . . . where the garbage collector is compensated directly by the recipients of his service as it is when the recipients pay for the service through the conduit of the municipal treasury. In each case, regardless of who makes the final payment, it is the taxpaying citizen who provides the necessary funds and whose interest must be protected.”), with Midwest Realty v. City of West Jordan, 541 P.2d 1109, 1110-11 (Utah 1975) (no bidding required where city was to reimburse developer for installation of sewer lines in development where funds would be derived exclusively from regular sewer service fees paid by homeowners).
Jeri-Co additionally argues that the competitive bidding laws do not apply to the transaction before us because Jeri-Co is not an “agent” under the pertinent statutory definition. Section 34-201 requires that every “agent” seek bids for public projects, and § 34-101 defines “agent” as “any county, city or town, or officer, board or, commission thereof, and irrigation, power, electrical, drainage and flood control districts, tax levying public improvement districts, and county or city improvement districts.” Although Jeri-Co is correct that it is not an “agent” as defined by the statute, we are unwilling to accept Jeri-Co’s conclusion that the competitive bidding laws do not therefore apply.
The gist of Jeri-Co’s argument is that a municipality can avoid the competitive bidding requirements by entering into an agreement with a private party whereby the municipality gives the private party control over the letting of the contract for public improvements; because the private party is not an “agent,” the bidding laws do not apply at all. We do not believe the legislature intended the bidding laws to be so easily avoided.
avoid the likelihood of their being circumvented, evaded, or defeated. Stern insistence upon positive obedience to such provisions is necessary to maintain the policy which they uphold.
Secrist, 6 Ariz. App. at 106, 430 P.2d at 452 (quoting 43 Am.Jur. Public Works and Contracts § 26); see Central Arizona Water Ditching Co. v. City of Tempe, Municipal Property Corp., 140 Ariz. 119, 122, 680 P.2d 829, 832 (Ct.App. 1984) (section 34-221 of the public bidding laws applied where municipality used a private corporation merely as a financing vehicle for the construction of a public project).
In short, a municipality cannot alter the public nature of a project for the improvement of public property, to be paid in whole or in large part by public funds, by entering into a development agreement assigning a private party control over the bidding and letting of the construction contract.
In determining whether the development agreement statute supersedes the competitive bidding laws, we are mindful that whenever possible we adopt a construction of a statute that reconciles it with other statutes and gives force to all statutes involved. Pima County v. Maya Constr. Co., 158 Ariz. 151, 155, 761 P.2d 1055, 1059 (1988); State v. Sweet, 143 Ariz. 266, 270-71, 693 P.2d 921, 925-26 (1985). We also construe a statute in a manner that “will best serve the legislature’s purposes, policies, and goals” apparent from the whole body of relevant law. Tracy v. Superior Court, 168 Ariz. 23, 31, 810 P.2d 1030, 1038 (1991). In this case, neither the language of the development agreement law nor the policies behind it compel the conclusion that the legislature intended to exempt public buildings or structures built pursuant to development agreements from the competitive bidding laws.
If the legislature meant for agents to dispense with public bidding on work performed under an A.R.S. § 9-500.05 development agreement, it could and should have made this explicit, given the importance of public bidding. It did not. Unless a statute’s language or effect clearly requires the conclusion that the legislature must have intended it to supersede or impliedly repeal an earlier statute, we will not presume such an intent Maya Constr. Co., 158 Ariz. at 155, 761 P.2d at 1059. Here, the statute contains nothing evincing an intent to supersede the competitive bidding law. Cf. A.R.S. § 9-500.05(E) (expressly providing that the land subdivision laws in A.R.S. § 32-2181 do not apply to development agreements).
Despite the absence of conflict between the development agreement law and the competitive bidding law on their face, Jeri-Co and Chandler argue that the public policy behind the development agreement law will be thwarted if compliance with the competitive bidding law is required. They argue that the purpose of the development agreement statute is not merely to expedite the construction of public improvements to facilitate private development — as the court of appeals explained — or to secure the construction of public improvements, but also is to allow municipalities to enhance their economies by attracting private development. They conclude that requiring competitive bidding will jeopardize the willingness of municipalities and developers to enter into development agreements.
to reimburse developers for the off-site public improvements that often accompany private development. Developers may still be reimbursed for such construction — if they comply with the competitive bidding laws. We do not believe this places an undue burden upon a municipality attempting to attract businesses.
10 McQuillin § 29.29; Edwards v. City of Renton, 67 Wn.2d 598, 409 P.2d 153, 155-58 (1965) (competitive bidding required where city reimbursed shopping center owners for installation of traffic signals). If a developer were permitted to reject all bids and simply perform the work itself — even if reimbursement would be limited to the amount of the lowest bid — there would be nothing to prevent the developer from seeking extra profit by rejecting the bids and constructing the improvements with materials and equipment of lesser quality than required in the original bid specifications. In such a case, the public would receive neither proper quality nor full value for its money, goals public bidding is designed to protect. While this may not be a problem under Jeri-Co’s agreement with Chandler, there is no guarantee that other development agreements will safeguard the public. We conclude that while municipalities are free to enter into development agreements authorized by A.R.S. § 9-500.05, such arrangements must comply with the competitive bidding laws to serve all of the purposes of those laws.
The off-site, street-related improvements are “structures” within the scope of the competitive bidding laws, and the fact that the improvements were provided for in a development agreement does not exempt them from bidding requirements. The court of appeals’ opinion is vacated except for its conclusion granting the injunctive relief requested by Achen-Gardner and awarding Achen-Gardner its costs and attorneys’ fees in the superior court and court of appeals. See Achen-Gardner, 167 Ariz. at 545, 809 P.2d at 970. The case is remanded to the superior court for any further necessary proceedings.
MOELLER, V.C.J., and CORCORAN, J., and FRANK X. GORDON, Jr., J. (retired), concur.
(a) Construction of an additional thru-lane on Alma School Road with deceleration lanes at the driveways from Warner Road to Mariposa Road. The construction shall include all demolition, grading, paving, curbs and gutters, sidewalks, street lights, street signage, traffic control devices, drainage facilities, utility undergrounding, and landscaping within the right-of-way, in accordance with the City’s design standards. City will be responsible for maintaining all such improvements upon acceptance except for the landscaping which shall be maintained by Developer. Developer agrees to dedicate the necessary right-of-way across the Property at no cost to the City to accommodate the improvements.
(b) Installation of traffic signals at the intersection of Alma School and the Property’s southern most driveway which is north of Warner and at Warner Road and Evergreen Street. City will be responsible for maintenance of the traffic signals.
(c) Right-of-way landscaping along Mariposa, Evergreen, El Monte, and Alma School Road and that portion of Warner east of Evergreen.
(d) Reconfiguration and reconstruction of a new cul-de-sac bubble at the intersection of Mariposa Street and El Monte Drive at the point of abandonment of Mariposa east.
(e) Construction of a deceleration lane on Warner Road at Evergreen Street.
(f) Construction of street lights on Warner Road in accordance with City street light standards.
(g) Construction of a raised median in Warner Road from its current eastern termination point to a point approximately 300 feet east of Evergreen Street.
(h) Reasonable architectural, engineering and landscape architect services necessary to perform items (a) through (g) of this Section 2.1.
 The City of Chandler and its purchasing office are “agents” as defined in A.R.S. § 34-101.
 In addition, courts have construed various improvements other than buildings to be structures. See, e.g., Clark v. Town of Estes Park, 686 P.2d 777, 779 n. 5 (Colo. 1984) (parking lot a structure for purposes of zoning exemption law); Beyt v. Woodvale Place Apartments, 297 So.2d 448, 450 (La.App. 1974) (boulevard for entrance and exit to apartment complex a structure under restrictive covenant); Easy Living Mobile Manor, Inc. v. Eureka Fire Protection Dist., 513 S.W.2d 736, 739 (Mo.App. 1974) (concrete pad a structure requiring fire district inspection and fee); Town of Jackson v. Town Country Motor Inn, Inc., 120 N.H. 699, 422 A.2d 1034, 1035 (1980) (sign a structure under zoning law’s pre-existing use provision) McCormack v. Bertschinger, 115 Or. 250, 237 P. 363, 365 (1925) (driveway and walk structures under mechanic’s lien statute).
 Cf. Judd Supply Co. v. Merchants and Mfrs. Ins. Co., 448 N.W.2d 895, 897 (Minn.App. 1989) (mandatory bond laws for public works did not apply because “[p]rivate development is not transformed into `public work’ simply because it receives public financial assistance. Rather, in enacting this comprehensive series of tax increment financing statutes, the legislature created a new way to stimulate private economic growth.”); Uhls v. State ex rel. City of Cheyenne, 429 P.2d 74, 90 (Wyo. 1967) (competitive bidding statutes do not apply where “procedures for acquiring properties and issuing bonds are specific and definite in the industrial development projects act”).
 The court of appeals ordered the superior court to “enjoin Chandler from reimbursing Jeri-Co for the public street improvements unless the competitive bidding laws under Title 34 are followed.” Achen-Gardner, 167 Ariz. at 545, 809 P.2d at 970. The propriety of such an injunction was not included among the issues presented by the parties in their petitions for review. Consequently, we address neither the propriety of that remedy nor its continued viability. Thus, this disposition does not preclude the parties from questioning, on remand, the continuing suitability under the circumstances of such equitable relief.
JAMES DUKE CAMERON, Justice (Retired), dissenting.
I regret that I must dissent.
I agree with the majority that the outside improvements are structures subject to the competitive bidding law. I agree that the construction of the outside improvement is not a private project exempt from competitive bidding.
I dissent, however, because I believe that the requirements in the development agreement statute and the competitive bidding law have been complied with by the procedure followed here. There was notice, there was an open bid, and there was a decision to reject that bid, which the law allows.
Jeri-Co and Chandler complied with the spirit if not the letter of the competitive bidding law. The procedure followed protects the rights of the public. I would affirm the trial court.
This matter was considered by the Court, Chief Justice Feldman, Vice Chief Justice Moeller, and Justices Corcoran and Gordon (retired) participating.
IT IS ORDERED that the Motion for Reconsideration is granted with regard to the Court of Appeals’ injunction order and award of costs and attorneys’ fees in the Superior Court and Court of Appeals to Achen-Gardner, Inc., and denied as to all other issues.
IT IS FURTHER ORDERED that the last sentence in the Opinion in this matter is amended, on page 18, as set forth on the attached page.
IT IS FURTHER ORDERED that Achen-Gardner’s request for attorneys’ fees in this Court is denied.
IT IS FURTHER ORDERED that Achen-Gardner is allowed its costs in this Court in the sum of $84.75.
CAMERON, J., would grant the Motion for Reconsideration for the reasons stated in his dissent.


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70 Fair Empl.Prac.Cas. (BNA) 574, 44 Fed. R.
Inc., a Delaware corporation, Appellee/Cross-Appellant.
Appeals from the United States District Court for the District of Minnesota; Donald Alsop, Judge.
Michael Albert Pinotti, St. Paul, Minnesota, argued (John E. Thomas, on the brief), for appellant.
William G. Trumpeter, Chattanooga, Tennessee, argued (Karen M. Smith, on the brief), for appellee.
Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
Donald Slathar appeals the judgment entered following an adverse jury verdict in his Age Discrimination in Employment Act claim, 29 U.S.C. §§ 621-634 (1994), alleging he was wrongfully terminated because of his age. Slathar argues that the district court1 erred by (1) instructing the jury on business judgment, (2) not allowing a former Sather's human resource manager to testify, and (3) refusing to strike part of the company's closing argument. We affirm.
Slathar was born in January 1935. He began working for Powell's Candies, Inc., a candy manufacturer, in 1976. Slathar's duties included supervising maintenance in the facility, keeping the equipment running, designing equipment, and plant engineering.
In November 1991, Sather's purchased the Powell's facility. Shortly thereafter, the company began restructuring the Powell's organization to more closely reflect Sather's organizational structure. Powell's maintenance department had always designed and built equipment in-house. In contrast, Sather's policy was to purchase equipment on the open market.
In January 1992, Sather's informed Slathar that he was being terminated in March. The company claimed Slathar's position as a design engineer was no longer needed, and his position was being eliminated. Slathar believed he was being fired because of his age, and replaced as maintenance supervisor by Ricky Vos, a Sather's employee in his thirties, who was transferred to the former Powell's facility to serve as Maintenance General Foreman.
Slathar sued Sather's. Following the pre-trial conference the district court dismissed Sather Trucking as a defendant and dismissed Slathar's tortious interference claim. The jury returned a special verdict on Slathar's Age Discrimination in Employment Act claim, finding that Slathar's age was not a determining factor in the company's decision to discharge Slathar. Based on the verdict, the district court made a finding of fact in Slathar's Minnesota age discrimination claim that the company did not discriminate against Slathar on the basis of age. The court entered judgment against Slathar and he appeals.
Slathar argues that the district court erred by instructing the jury on business judgment. He contends this instruction increased his burden of proof and materially misstated the law. He also argues that it was error to refuse to instruct the jury that if it found he was discharged because of his pay, they could consider that his pay was tied to his experience and age.
The district court instructed the jury that they must find for Slathar if age was a determining factor in his termination, and age is a determining factor only if the company would not have terminated Slathar but for his age. The court went on to instruct that an employer has the right to make business decisions, absent intentional age discrimination, "even if the factor motivating the decision to terminate is typically correlated with age; such as pension status, salary or seniority." The court submitted special interrogatories to the jury, and the jury specifically found that age was not a determining factor in Slathar's discharge.
"We review the district court's formulation of jury instructions for abuse of discretion. We must determine whether the jury instructions, taken as a whole, fairly and adequately submitted the issues in the case to the jury." Transport Ins. Co. v. Chrysler Corp., 71 F.3d 720, 723 (8th Cir.1995) (citations and internal quotations omitted). "[T]he form and language of jury instructions are committed to the sound discretion of the district court so long as the jury is correctly instructed on the substantive issues in the case." Walker v. AT & T Technologies, 995 F.2d 846, 849 (8th Cir.1993) (quoting Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir.), cert. denied, 506 U.S. 1014, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992)).
"The ADEA is not intended to be used as a means of reviewing the propriety of a business decision." Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110 (8th Cir.), (quoting Jorgensen v. Modern Woodmen of Am., 761 F.2d 502, 505 (8th Cir.1985)), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994). In Walker, 995 F.2d at 849, we held that, on the record there before us, the employer was entitled to have the jury instructed "that an employer may exercise business judgment in making personnel decisions." An employer has the right to make business decisions, so long as they are made in a nondiscriminatory manner. See Walker, 995 F.2d at 849-50.
Even if Slathar was terminated because of his high salary, age discrimination cannot necessarily be inferred. See Bialas v. Greyhound Lines, 59 F.3d 759, 763 (8th Cir.1995). Slathar's "status as an experienced and thus higher paid employee [ ] does not in itself permit an inference of age discrimination." Serben v. Inter-City Mfg. Co., 36 F.3d 765, 766 (8th Cir.1994) (per curiam), cert. denied, --- U.S. ----, 115 S.Ct. 1402, 131 L.Ed.2d 290 (1995). Age discrimination may exist when an employer terminates an employee based on a factor such as experience or salary when the employer presupposes a correlation with age and uses that factor as a proxy for age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 612-13, 113 S.Ct. 1701, 1707-08, 123 L.Ed.2d 338 (1993). However, a decision to terminate an employee solely because of salary or length of service is not age discrimination. Id. at 611, 113 S.Ct. at 1706. Age and these other factors are analytically distinct. Id.
Relying on St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), Slathar argues that the court's instruction confused the substantive issues that the jury was supposed to decide, somehow injecting procedural issues into the jury's decision and effectively increasing his burden of proof. St. Mary's Honor Center, 509 U.S. at 504-06, 113 S.Ct. at 2746, was a Title VII case tried to the court. The Court's discussion of McDonnell Douglas burden shifting offers no support for Slathar's argument. Reading the instructions as a whole, it is evident that the jury's consideration was directed to whether age was the determining factor in the decision to discharge Slathar, and Slathar had the burden of proving that he was discharged because of his age. While the instruction dealt with business judgment, pension status, salary, and seniority, the instruction plainly stated the ultimate issue for the jury's determination. See Walker, 995 F.2d at 849; Hazen Paper Co., 507 U.S. at 611-613, 113 S.Ct. at 1706-08. The district court did not abuse its discretion by giving the proffered instruction.
Furthermore, the district court did not abuse its discretion by refusing to instruct the jury that if it found that Slathar was discharged because of his pay, it could consider that his pay is tied to his experience and age. In proposing this instruction, Slathar misconstrues the Court's statement in Hazen Paper Co., 507 U.S. at 612-13, 113 S.Ct. at 1707-08, which noted that age discrimination may exist when an employer uses another factor as a proxy for age. The Age Discrimination in Employment Act requires that an employer not discriminate based on age. It does not require an employer to ignore an employee's other characteristics. The ultimate test is whether the company discriminated against Slathar because of his age, and the district court properly instructed the jury on this question.
Slathar next argues that the district court should have admitted the testimony of Anita Darnell, a former human resources manager at Sather's, regarding a phone conversation she had with Douglas Pendgraft, the Sather's Corporate Director of Personnel. Darnell said that she did not participate in the decision to terminate Slathar. Upon learning that Slathar had been terminated, Darnell telephoned Pendgraft and informed him that she believed terminating Slathar was a risky decision because Slathar was in a protected group based on his age and perhaps his disability. Pendgraft responded "that Sather's would take care of it."
The district court refused to allow Darnell's testimony on this subject, finding it was irrelevant under Federal Rule of Evidence 401 because Darnell had not participated in the employment decision, the conversation took place after the decision to terminate Slathar had been made, and it amounted to nothing more than her opinion regarding the company's potential exposure. Further, the court found that the value of the proposed testimony was far outweighed by its prejudicial impact. See Fed.R.Evid. 403.
"Admission of evidence is a matter for the district court's discretion and we will defer to the district court's ruling absent an abuse of discretion." Morgan v. Arkansas Gazette, 897 F.2d 945, 952 (8th Cir.1990). Stray remarks and statements by nondecisionmakers are not direct evidence of discriminatory motive. See Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991). Darnell's testimony that she told a senior manager that Slathar was in a protected class is not evidence of discrimination. See Bashara v. Black Hills Corp., 26 F.3d 820, 823-24 (8th Cir.1994) (holding that human resources manager's expression of concern over possible age discrimination claim was the "equivalent of a stray remark" and did "not constitute evidence of discriminatory animus").
Darnell was not involved in the decision to terminate Slathar, and she did not offer her opinion of the decision until after it had been made. Pendgraft's response is much too ambiguous to be considered any sort of admission by company management, and it is not evidence of discriminatory intent.
The impact of Darnell's testimony would have been quite prejudicial. "Although it had no direct bearing on the issue to be decided ... this testimony embellished the circumstantial evidence directed to that issue by adding 'smoking gun' type evidence," the opinion of a company manager. Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir.1988). Such prejudice substantially outweighs any probative value the proposed testimony might have. The district court did not abuse its discretion by excluding Darnell's testimony.
[L]adies and gentlemen, you'll recall Mr. Varns stated Mr. Slathar drew nine to eleven weeks of unemployment compensation. He worked 46 out of the 52 weeks that year, and yet he's drawing unemployment compensation, making $21.00 an hour, 32 to 40 hours a week. Take a look at the exhibit when you get back there. Ladies and gentlemen, that's a fraud against the State.
The district court overruled Slathar's objection to this argument. Slathar now argues that we should grant a new trial because this argument was based on evidence not contained in the record.
"[C]losing arguments are made under the direct control of the trial court. We will not disturb the court's ruling unless an abuse of discretion occurred. To constitute reversible error, statements made in closing argument must be plainly unwarranted and clearly injurious." Pearce v. Cornerstone Clinic for Women, 938 F.2d 855, 859 (8th Cir.1991) (citations omitted).
The company's argument addresses both damages and Slathar's credibility as a witness. Both parties argue the substantive issue of whether Slathar violated Minnesota law and actually committed fraud on the state. Whether Slathar committed fraud on the state is certainly not a question for us to decide here, and it was not an issue for the jury in this age discrimination case. Counsel's conclusion that Slathar committed a fraud against the state, in our view, exceeds the bounds of zealous advocacy.
However, the district court instructed the jury several times that statements of counsel were not evidence in the case. Further, in denying Slathar's motion for a new trial, the court stated that the comment of defense counsel "was clearly not outcome determinative." We cannot conclude that this one sentence in the midst of the entire trial is so egregious as to warrant reversal. See Moses v. Union Pac. R.R., 64 F.3d 413, 417 (8th Cir.1995) (holding that "[a]lthough we strongly disapprove of defense counsel's closing argument, we decline to reverse because plaintiff has failed to make a showing of prejudice").
We affirm the decision of the district court. Because we affirm, we need not reach the issues raised in the company's cross appeal.

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Throughout this document, we will define a few terms to describe various roles within Diggle. Diggle Users are people using the service we provide in some capacity. They may be further classified into three categories: Diggle Account Owners who legally pays for the services, Diggle Creators who create content on Diggle and host a session, and Diggle Participants who participate in sessions created by Diggle Creators. Every Account will have one Account Owner, but may have several Diggle Creators (as agreed upon with our representatives). Because Account Owners are also Diggle Creators within their respective accounts, everything in this document that applies to Diggle Creators also applies to Account Owners.
User account information. Users that choose to register, will have to provide a valid email address and username. The information may be used for the purposes of operating our website, providing our services, ensuring the security of our website and services, maintaining back-ups of our databases and communicating with you. This is required to deliver the Service to you as user, by taking steps, at your request, to enter into such a contract (Terms of Service) cf. GDPR art. 6 (1) b.
Transaction information. Customers that have purchased a paid version of the Services provide Diggle (and our payment processors) with billing details such as credit card information, billing email, banking information, location at the time of transaction and/or a billing address. The transaction data may be processed for the purpose of supplying the purchased services and keeping proper records of those transactions. This data may be used for the purpose of delivering the Services to you. Collecting this information is required for performing the contract we entered into with you, at your request (our Terms of Service) cf. GDPR art. 6 (1) b.Additionally, this information needs to be retained in order to comply with accounting and tax regulation cf. GDPR art. 6 (1) c.
Technical log data. Like most digital services, our servers automatically collect information when you access or use our Websites or Services and record it in log files. This log data may include the Internet Protocol (IP) address, the address of the web page visited within the Services, browser type and settings, the date and time the Services were used, information about browser configuration, plugins and language preferences.
Device information. We may collect information about devices used to access the Services, including type of device, what operating system is used, device settings, application IDs, unique device identifiers and crash data. Whether we collect some or all of this information depends on the type of device used and its settings.
Collecting this information it is required for performing the contract we entered into with you, at your request (our Terms of Service), as well as our legitimate interest of handling your requests cf. GDPR art. 6 (1) f.
Service and transactional notifications. Sometimes we’ll send you emails about your account, service changes or new policies. You can’t opt out of this type of “service or transactional” emails (unless you delete your account). The legal grounds for collecting this information is that it is required for performing our commitment about communicating changes in plans and pricing to you in the contract we entered into with you, at your request (our Terms of Service) cf. GDPR art. 6 (1) b, and our legitimate interest of communicating important information about your account to you, cf. GDPR art. 6 (1) f.
If you, as an Account Owner or Diggle Creator, store any personal data in Diggle, for example as a result of creating a survey, you are seen as responsible for that data.
With Diggle you have full control over your data. A common scenario is that you want to retain the aggregated responses for a session, while removing identifying data. We want to make this easy. You can download an excel report with the click of a button, then download displays for the sessions and you have all the data for the session. Then you can simply delete the session, and, except for our database backups and logs, we will have no records of the session ever occurring.
Our database is backed up daily and the backups are removed 120 days after the next backup is made.
If you require information to be completely deleted from the system in a shorter time frame, you can send us an email and we will speed that up.
You are responsible for managing the data provided by participants in your Diggle sessions and complying with GDPR and local law.
You are free to distribute the images of the answer displays and excel reports generated from your Diggle sessions to anyone. By distributing such images or excel documents, you are responsible for complying with regulations and laws regarding distribution of personal data.
If you decide to cancel your account subscription, Diggle will not delete your content, or account data. You can, however, request an account deletion. Diggle will then delete your account, and all its data and content from our servers. After 120 days, the data will also be automatically and permanently deleted from our backups.
Contact data. When you create an account on Diggle, you provide us with some information to contact you, such as an email address. In certain cases, you may also choose to share your phone number for support purposes. If you participate in a session, you may also need to provide an email address if you wish to receive your customized report at the end of the session (not yet available on publishing date).
Content data. This includes any content that you create or upload on Diggle such as exercises (title, choices, url’s, pictures..), demographics and information. As a participant, this corresponds to the information you send such as your answers or inputs.
Billing data. If you purchase a predefined subscription plan (not a custom made plan), our third-party payment processor (Stripe) will collect and store your billing address and credit card information. We do not store any parts of your credit card number, card type or expiration date on our servers. We may store your name, email and other data we may need in communication with you.
Profile data. Diggle Users may give us permission to access their information in other services. For example, with your consent, you may want to get newsletters from Diggle to your email. As this process is partially handled using a third-party marketing and email managing tool (ActiveCampaign), the third party is given access to parts of your personal information, such as username, email, subscription plan and possibly more, depending on the situation. The information we get from those services help us manage our users and grow Diggle, effectively making it possible for us to provide and improve our services.
Log & Device data. When you use Diggle, our servers automatically record information (“log data”), including information that your browser sends whenever you visit our Website. This log data may include your web address you came from or are going to, your device model, operating system, browser type, unique device identifier, IP address, mobile network carrier, and time zone or location. Whether we collect some or all of this information often depends on what type of device you’re using and its settings. For example, different types of information are available depending on whether you’re using a Mac or a PC, or an iPhone or an Android phone. To learn more about what information your device makes available to us, please check the policies of your device manufacturer or software provider.
Other Website Analytics Services. Subject to your opt-out preferences (see Your Rights and Choices below), we use third party service providers such as Active Campaign to provide certain analytics and user interactions services to Diggle in connection with our operation of our Platform, including the collection and tracking of certain data and information regarding the characteristics and activities of visitors. You may opt-out of third-party services using Opt-Out Features on their website.
Provide the Diggle Service. We will use your information to provide our Platform and services to you; to facilitate interactivity between Diggle Creators and Diggle Participants; to manage your account; to respond to your inquiries; and for other customer service and support purposes. We use the payment information you provide to us in order to alert you of past, current, and upcoming charges, to allow us to present the billing history to you on your account page in the platform, and to perform internal financial processes, such as looking at the status of a credit card charge. In the session of a credit card dispute, we also share account information with your bank to verify the legitimacy of a charge.
Understand and improve our products. We will perform research and analysis about your use of, or interest in, our products, services or content, or products, services or content offered by others. We do this to help make our products better and to develop new products.
Service related communications. We may send you service and administrative emails to ensure the service is working properly. We may also email you if a session report becomes available. These messages are considered part of the service and you may not opt out of these messages.
Promotional. Subject to your opt-out preferences, we may send you emails about new product features or other news about Diggle or on topics we think would be relevant to you. You may opt out of receiving these communications at any time. Please see the Your Rights and Choices section below.
Protecting Rights and Interests. We may use your information to protect our rights and interests as well as the rights and interests of our users and any other person, as well as to enforce this Policy or our Terms of Service.
Business Transfers. We may engage in a merger, acquisition, bankruptcy, dissolution, reorganization, or similar transaction or proceeding that involves the transfer of the information described in this Policy. In such transactions, customer information is typically one of the business assets that is transferred or acquired by a third party. If we are acquired by or merged with another company, if we sell or transfer a business unit or assets to another company, in the unlikely session of a bankruptcy proceeding, or as part of any other similar business transfer, you acknowledge that such transfers may occur.
Consent. We may use your personal information as described in this Policy subject to your consent. To withdraw your consent, please contact us at: info@diggle.com. You may also refrain from providing, or withdraw, your consent for cookies. Please see Your Rights and Choices below for more information on opt-outs.
Performance of a contract. We may need to collect and use the personal information of Diggle Users, as applicable, to perform our contractual obligations.
Legitimate Interests. We may use your personal information for our legitimate interests to provide our Platform and services and to improve our services and the content on our Platform. We also process information to improve the user experience. We may use technical information as described in this Policy and use personal information for our marketing purposes consistent with our legitimate interests and any choices that we offer or consents that may be required under applicable law.
Account. In order to keep your personal information accurate and complete, you can log in to review your account information, including contact and subscription plan information, via your account settings page. You may also contact us to request information about the personal data we have collected from you and to request the correction, modification or deletion of such personal information. We will do our best to honor your requests subject to any legal and contractual obligations. If you would like to make a request, cancel your account or request we delete or no longer use your account information to provide you Services, contact us at: info@diggle.com. Subject to applicable law, we will retain and use your account information only as necessary to comply with our legal obligations, resolve disputes and enforce our agreements.
E-mail. As described above, if you do not wish to receive promotional emails from us, you may opt out at any time by following the unsubscribe link contained in the email itself. Please note that it may take up to ten (10) days to process your request. Please also note that if you opt out of receiving marketing communications from us, we may continue to send to you service-related emails which are not available for opt-out. If you do not wish to receive any service-related emails from us, you have the option to deactivate your account.
Cookies. You may also refrain from providing, or withdraw, your consent for cookies. Your browser’s help function should contain instructions on how to set your computer to accept all cookies, to notify you when a cookie is issued, or not to receive cookies at any time. Here, you may find instructions for your browser: https://cookies.insites.com/disable-cookies/.
Third Party Analytics Services. Some of the services used provide the ability to opt-out. You may opt-out of Google Analytics, and promotional emails from us and our email marketing partner, ActiveCampaign.
Google Analytics is only used on our landing page www.diggle.com/ and is provided by Google Inc. You can prevent Google Analytics from using your information for analytics purposes on their Opt-Out page at https://tools.google.com/dlpage/gaoptout/.
This Policy is current as of the Effective Date set forth above. We may change this Policy from time to time, and if we do we’ll post any changes, including any material changes, on this page, so please be sure to check back periodically. If you continue to use Diggle after those changes are in effect, you agree to the revised Policy.
Any notices must be sent to Diggle in English at info@diggle.com. A printed version of this agreement and any warning mention delivered in electronic form will be accepted in any legal or administrative procedure resulting from, or related to this agreement, in the same way and under the same conditions as other documents and trade registers created and stored in written form.

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M. V. Timmaraju, R. Gnanamoorthy, K. Kannan and G. Sriharsha, Experimental and numerical prediction of effect of frequency on bending fatigue performance of polyamide 66/hectorite nanocomposite, Plastics, Rubber and Composites, 47 (6), 2018, 282-295 (Impact Factor: 0.848).
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Effect of initial imbibed moisture content on flexural fatigue behavior of polyamide 66/hectorite nanocomposites at laboratory condition, Materials Science and Engineering: A, 528 (6), 2011, 2960-2966 (Impact Factor: 3.414).
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Influence of imbibed moisture and organoclay on tensile and indentation behavior of polyamide 66/hectorite nanocomposites, Composites Part B: Engineering, 42 (3), 2011, 466-472 (Impact Factor: 4.92).
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Effect of environment on flexural fatigue behavior of polyamide 66/hectorite nanocomposites, International Journal of Fatigue, 33 (4), 2011, 541-548 (Impact Factor: 3.132).
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Influence of organoclay on flexural fatigue behavior of polyamide 66/hectorite nanocomposites at laboratory condition, Polymer Composites, 31 (11), 2010, 1977-1986 (Impact Factor: 1.943).
K. Sivakumar, M. V. Timmaraju and R. Gnanamoorthy, Design and development of continuous fiber thermoplastic sprocket for tracked vehicles and machines, Indo-Japan Bilateral Symposium on Futuristic Materials and Manufacturing (IJBSFMM-2018), IIT Madras, 2018.
G. Venkatesh and M. V. Timmaraju, Low velocity impact behavior of high performance thermoplastic composites, Indo-Japan Bilateral Symposium on Futuristic Materials and Manufacturing (IJBSFMM-2018), IIT Madras, 2018.
P. Krishna Murthy, K. G. Durga Prasad and M. V. Timmaraju, Experimental investigation on tensile and stress relaxation behavior of polyamide 6/montmorillonite composite, International Conference on Contemporary Design and Analysis of Manufacturing and Industrial Engineering Systems (CDAMIES-2018), NIT Tiruchirapally, 2018.
D. Panda and M. V. Timmaraju, Study of thermal behavior of brake disc materials, Sixth International Congress on Computational Mechanics and Simulation (ICCMS-2016), IIT Bombay, 2016.
M. V. Timmaraju, S. Chatterjee, T. Katano and G. Sriharsha, Prediction of influence of organoclay and imbibed moisture on the behavior of polyamide66/organoclay nanocomposites during cyclic straining, International conference on computer aided engineering (CAE-2015), GITAM University, 2015.
M. V. Timmaraju and S. Chatterjee, Influence of heat dissipation on fatigue behavior of polymer nanocomposites during cyclic straining, International conference on theoretical, applied, computational and experimental mechanics (ICTACEM-2014), IIT Kharagpur, 2014.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Prediction of influence of sea water on viscoelastic behavior of polyamide 66/hectorite nanocomposites, International Colloquium on Materials, Manufacturing and Metrology (ICMMM-2014), IIT Madras, 2014.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Prediction of influence of organoclay and imbibed moisture content on viscoelastic behavior of polyamide 66/organoclay nanocomposites, International conference on Computer Aided Engineering (CAE-2013), IIT Madras, 2013.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Effect of sea water environment on flexural fatigue behavior of polyamide 66/hectorite nanocomposites, Asian Symposium for Materials and Processing (ASMP 2012), IIT Madras, 2012.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Influence of sea water immersion on mechanical behavior of polyamide nanocomposites, International Conference on Recent Trends in Advanced Materials (ICRAM-2012), VIT Vellore, 2012.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Fatigue behavior of polyamide nanocomposites, International conference on composites and nanocomposites, (ICNC 2011), Mahatma Gandhi University, Kottayam, 2011.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Effect of frequency on fatigue behavior of polymer/clay nanocomposites, International Symposium for Research Scholars on Metallurgy, Materials science and Engineering (ISRS 2010), IIT Madras, 2010.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Mechanical and Thermal characteristics of polyamide 66/clay nanocomposites, Polymer Congress on Polymer Science and Technology: Vision and Scenario (APA 2009), IIT Delhi, 2009.
M. V. Timmaraju, R. Gnanamoorthy and K. Kannan, Flexural fatigue behavior of nylon 66 in humid conditions, International Symposium for Research Scholars on Metallurgy, Materials science and Engineering (ISRS 2008), IIT Madras, 2008.

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twing (twyng ?) what is pressed together (?), a mass, lump: -- Twinga massas. Hpt. Gl. 496, 70. v. next word.
twingan (?); p. twang; pp. twungen To press, force :-- Se hrýnð (tringaþ (twingeþ?), MS. M.) muntas qui tangit montes, Ps. Spl. 103, 33. [l am twinged (twungen, MS. H.) and meked incurbatus sum et humiliatus sum, Ps. 37, 9. Whil þat twinges (affligit) me þe fo, 41,10. Ger. zwingen.] v. twengan.
twi-nihte; adj. Two days old :-- Twynihte grút. Lchdm. ii. 74, 9. v. twá-nihte.
twinn, twínung. v. twin, tweónung.
twín-wyrm (twin- ?), es; m. The word glosses buprestis ( = GREEK a poisonous beetle, which when eaten by cattle in the grass caused them to swell up), Wrt. Voc. i. 24, 35.
twio-féte, twiógan, twio-ræ-acute;de. v. twi-féte, tweógan, twi-ræ-acute;de.
twi-ræ-acute;de; adj. I. of two minds, uncertain, undecided, irresolute :-- Geþenc be ðé selfum hwæðer ðú æ-acute;nig ðing swá fæste getiohhod hæbbe ðæt ðé þynce ðæt hit næ-acute;fre ðínum willum onwended weorþe ... Oððe hwæðer ðú eft on æ-acute;ngum geþeahte swá twioræ-acute;de sié ðæt ðé helpe hwæðer hit gewyrþe þe hit nó ne gewyrþe consider in your own case whether you have so firmly determined anything, that it appears to you, that it will never with your consent be changed ... Or again, whether in any plan you are so uncertain, that it may help you, if it is carried out, or if it is not, Bt. 41, 3; Fox 250, 5-9. II. of divided counsel, without unanimity :-- Æ-acute;lc ríce ðe byþ twyræ-acute;de on him sylfum omne regnum divisum contra se, Mt. Kmbl. 12, 25. [Bruttes weoren alle twiræde, heore teone wes þa mare, Laym. 19416.] v. án-ræde, and next word.
twiræ-acute;dness e; f. Discord, dissension, disagreement :-- Sacu and twiræ-acute;dnyss (strife, seditions, Gal. 5, 20), Homl. Skt. i. 17, 26. Ðæt swá hweþer swá hit wæ-acute;re swá sibb swá twyrédnys betweónan Saxan and Myrcenum, ðæt ðæt mynster beó æ-acute;fre on sibbe. Cod. Dip. B. i. 156, 16. Se ðe sibbe Drihtnes twyræ-acute;dnysse mid hátheortnysse tóbrycþ qui pacem Domini discordiae furore rumpit, Scint. 10, 2. God ná ys twyræ-acute;dnysse (dissensionis) God, 134, 6. Be twiræ-acute;dnysse de discordia, 133, 17. Se wæs for sumere twyræ-acute;dnesse (seditione) on cwertern ásend, Lk. Skt. 23, 19. Ða ðe ceáste and twyræ-acute;dnysse styredon, Homl. Th. ii. 338, 11. Ðonne gé geseóþ gefeoht and twyræ-acute;dnessa (seditiones), Lk. Skt. 21, 9. Twyrédnysse dissensiones, R. Ben. Interl. 109, 17. Twirédnesse discordias, Kent. Gl. 1124.
-twis, -twisa. v. ge-twis, -twisa.
twi-sceatte; adv. To the extent of a double payment :-- Sió bót biþ twysceatte máre the 'bót' shall be twice as much, L. Alf. pol. 66; Th. i. 96, 31. [O. Frs. twi-skette.] Cf. twi-gilde.
twi-scyldig; adj. Liable to a double penalty :-- Gif se frigea cunnandæge wyrce ... þolie his freótes oþþe sixtig sci&l-bar;&l-bar;., and preóst sí twy-scildig, L. In. 3; Th. i. 104, 7. Cf. twi-gilde.
twi-seht; adj. Discordant, at variance :-- Twysehte discordes, Scint. 192. 13.
twi-sehtan (?) to disagree, be at variance :-- Úðwitan gesihþ twy-sehtan (? Cockayne prints twyselican) hénðe getácnaþ if in a dream a man sees philosophers disagree, it betokens humiliation, Lchdm. iii. 204, 24.
twisehtness, e; f. Discord, dissension, variance :-- Fram twysehtnysse yfele a dissensionis malo, Scint. 6, 12.
twisel; adj. Forked, double. [Twisil tunge double tongue (Ecclus. 5, 14), Wick. O.H. Ger. der onocentaurus bizeichinót die zuislen zungin der mennisken.] v. following words.
twisel-tóðe; adj. Having the teeth forked or double :-- Twiseltððe scinodens, Wrt. Voc. i. 17, 15.
twisled; adj. (ptcpl.) Forked :-- On ðone twisledan beám; of ðam twisledan beáme on ceorla geat; andlang mearce on ða twysledan ác, Cod. Dip. Kmbl. iii. 14, 1-4. Twisld corn scandula (scandella genus annonae apud Italos, q. alii dicunt hordeum distichum esse, alii vero hordeum cantherinum, Migne), Wrt. Voc. i. 38, 45. [Cf. Icel. kvísla-tré a forked tree; tví-kvíslaðr two-pronged.] v. next word.
twislung, e; f. Forking, branching, partition :-- Se þurh his cildhádes nytenesse ðis ríce tóstencte and his ánnesse tódæ-acute;lde ... Æfter his forðsíþe Eádgár ealne Angelcynnes anweald begeat, and ðæs ríces twislunge eft tó ánnesse bróhte, Lchdm. iii. 436, 3.
twi-snæcce, -snæce, -snece; adj. Double-pointed, cloven :-- Twysnæcce bisulcus, Ælfc. Gl. 49; Zup. 288, 11. (Cf. Snek pessulum. Wrt. Voc. i. 237, col. 2. Snekke or latche clitorium, pessulum, Prompt. Parv. 461. Snekk obex, obecula, Cath. Ang. 346 and see note. Sneck a latch; a piece of land jutting into an adjoining field, Halliwell's Dict. See also Jamieson's Dictionary sneck.) v. next word.
twi-snæ-acute;se; adj. Double-pointed, cloven :-- Twysnésum bisulcis, Germ. 393, 73. v. snás, and preceding word.
twi-spræ-acute;ce; adj. Double-tongued; bilinguis. Ælfc. Gr. 49; Zup. 288, 7. With a metaphorical meaning, deceitful in speech, false in speech, (with pleasant words) flattering, (with envy) detracting :-- Se ðe wæ-acute;re leássagol (twispæ-acute;ce, MS. E.), weorðe se sóðsagol (sóðspæ-acute;ce), Wulfst. 72, 16. Ne sýn wé tó tæ-acute;lende ne tó twigspræ-acute;ce let us not be too free with calumnies and detractions, 253, 6. Ne beó ðú nó tó tæ-acute;lende ne tó tweo-spræ-acute;ce ... ac beó leófwende, Exon. Th. 305, 19; Fä. 90. Twispréce a flattering (mouth, Prov. 26, 28); (os) lubricum, Kent. Gl. 1007. Word twispéces the words of a talebearer (Prov. 18, 8); verba bilinguis, 636. Twispécne múð the froward mouth (Prov. 8, 13); os bilingue, 243. Gehega ðíne eáran mid þornigum hege, ðæt ðú ne gehýre lustum móde ðæra twyspræ-acute;cena word, Wulfst. 246, 10.
twispræ-acute;cness, e; f. Falseness in speech, detraction :-- Bebeorh ðé wið twispræ-acute;cnysse cave tibi a biloquio, L. Ecg. C. proem.; Th. ii. 132, 10. Uton beorgan ús wið tæ-acute;lnysse and wið twyspræ-acute;cnysse and wið leáse gewitnysse caveamus nobis a vituperatione et a biloquio et a falso testimonio, L. Ecg. P. iv. 66; Th. ii. 226, 32. Twyspécnessæ, Wulfst. 290, 30. Ic ondette æfste, twyspræ-acute;cnesse and leásunge, Anglia xi. 98, 26. Ic andette tæ-acute;lnessa and twispræ-acute;cnessa, leásunga and unriht gilp, L. de Cf. 7; Th. ii. 262, 27.
twi-spunnen; adj. (ptcpl.) Double-spun, twice spun :-- Of twispunnenum twíne línenum torta bysso. Past. 14; Swt. 83, 23. v. twi-þráwen.
twist a branch, fork (?) [The faucon moste fallen fro the twiste, Chauc. Squieres Tale, 442. A twyste frons, ramus, Cath. Ang. 399, and see note. Twist the fourchure; a twig, Halliwell's Dict. Cf. Icel. kvistr a branch.] v. candel-, mæst-twist; twisel.
twi-strenge; adj. Two-stringed :-- Twistrenge bifidus (as if from fides), Ælfc. Gr. 49 ; Zup. 288, 10.
twi-telged; adj. (ptcpl.) Double-dyed :-- Of twitælgedum bis tincto, Wrt. Voc. ii. 126, 31. Twitælgade depploide. Ps. Surt. 108, 29.
twi-þráwen; adj. (ptcpl.) Double-twisted :-- Is beboden ðæt scyle beón twiðræ-acute;wen (-ðráwen, Cott. MSS.) twín (torta byssus) on ðæm mæssegierelan, Past. 14; Swt. 87, 18. Ðæt tweoðræ-acute;wene (twyðráwene, Cott. MSS.) twín, Swt. 89, 2. v. twi-spunnen.
twi-weg, es; m. A place where two roads meet :-- Twiweg bivia vel bivium, Wrt. Voc. i. 53, 57.
twi-wintre, -winter; adj. Of two years :-- Twiwintre biennis, Wrt. Voc. ii. 126, 11: binus, i. biennius, 126, 23. Twywintre biennis, bimus, Ælfc. Gr. 49; Zup. 287, 13, 18. Twiwinter bimus vel biennis vel bimulus, Wrt. Voc. i. 21, 58. Fram twywintrum cilde a bimatu, Mt. Kmbl. 2, 16: Homl. Th. i. 80, 16: 82, 11. Fram twiwintre fæce a bimatu, Ælfc. Gr. 49; Zup. 287, 19 note.

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Appeal from the Barbour Circuit Court, William Robertson, J.
J.K. Abbott, Jr., pro se.
Jeff Sessions, Atty. Gen., and Alice Byrne, Asst. General Counsel, Department of Corrections, for Appellee.
The appellant, J.K. Abbott, Jr., appeals from the circuit court's dismissal of his petition for a writ of habeas corpus challenging his prison disciplinary for burglary, for allegedly entering and taking something from the prison canteen after it was closed, and his punishment of loss of eight months' good time and prohibition from earning good time for eight months.
The Department of Corrections' disciplinary report on the appellant's disciplinary proceeding is part of the record on appeal. The record reflects that the only evidence offered against the appellant was the testimony of the investigating officer, who testified at the disciplinary hearing that a "reliable source" had informed him that the source had seen the appellant leaving the prison canteen holding two brown paper bags after the canteen was closed. The investigating officer did not identify the source. The hearing officer indicated that his finding that the appellant was guilty of burglary was based on the investigating officer's testimony with regard to the information he received from the source.
The appellant contends that he was denied due process because, he says, the hearing officer did not make an independent determination that the investigating officer's source was reliable. He maintains that the investigating officer's testimony alone was insufficient evidence to support the hearing officer's finding. We agree.
" 'In cases in which prisoner misconduct is found upon evidence consisting entirely, or even substantially, of the statement of the investigating officer that he has been told by confidential informants that the misconduct occurred, and that the investigator believes the informant to the reliable, there must be some independent determination by the committee of the informant's reliability. In such cases, unless the committee makes an independent determination about what the facts of the alleged misconduct are by deciding, minimally, that the hearsay information has been supplied by a reliable informant, it is merely recording the findings made by the investigating officer who has made a determination about the informant's reliability, without making any determination for itself about the informant's reliability or even the basis for the investigator's opinion that the informant is reliable. To proceed in that fashion is not fact finding. It is record-keeping.' "
603 So.2d at 1125-26 (quoting Hensley v. Wilson, 850 F.2d 269, 276-77 (6th Cir. 1988)).
The record offers nothing to indicate that the hearing officer undertook an independent determination of the reliability of the investigating officer's source. Moreover, no evidence was presented as to why the investigating officer considered the source to be reliable, and no reason was given as to why the testimony of the source was not presented to the hearing officer. See Griffin v. State, 636 So.2d 1285, 1286 (Ala.Cr.App. 1994); Parker v. State, 597 So.2d 753, 754 (Ala.Cr.App. 1992). Furthermore, we can find no other evidence in the record that might be said to corroborate the source's information. See Kyle v. Hanberry, 677 F.2d 1386, 1391 (11th Cir. 1982). Compare Coleman v. State, 642 So.2d 532, 534 (Ala.Cr.App. 1994).
" 'In Owens v. State, 507 So.2d 576, 579 (Ala.Cr.App. 1987), this Court held that '[w]hile hearsay testimony may be admissible [at prison disciplinary hearings], it may not be sufficient by itself in all cases to support a finding of guilt.' " Parker, 597 So.2d at 754. Considering the circumstances in this case, the hearsay testimony of the investigating officer, standing alone, was insufficient to meet the "some evidence" standard to support a finding of guilt as required by Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
The circuit court's judgment dismissing the appellant's petition for a writ of habeas corpus is reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.

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A. Wayne, et al, Respondents.
 Libel and Slander - Summary Judgment - Nonmedia Defendant - Standard of Proof. A nonmedia defendant in a defamation action regarding his statement about private affairs is entitled to a summary judgment if, under CR 56(c), there is no genuine issue of material fact when the evidence and the reasonable inferences therefrom are viewed most favorably to the plaintiff. To withstand a motion for summary judgment, the plaintiff need not make out a prima facie case by evidence of convincing clarity.
 Judgment - Summary Judgment - Matters Considered - Hearsay. A court may not consider an inadmissible hearsay statement in deciding a motion for summary judgment.
 Judgment - Summary Judgment - Averment of Specific Facts - Witness Credibility. Once a proponent of a summary judgment has made an initial showing of the absence of genuine issues of material fact through the affidavits of witnesses, the opposing party must present contradictory evidence or otherwise impeach the witnesses' credibility.
 Libel and Slander - Opinion - Actionable Defamation - Factors. Whether a statement of opinion as to a matter of private concern gives rise to liability for defamation depends upon the totality of the circumstances, including the medium and context in which the statement was published, its intended audience, and its implication that undisclosed defamatory facts support it.
 Libel and Slander - Private Individual - Fault - Necessity. Negligence is an element of a private individual's defamation action.
NAMES OF CONCURRING OR DISSENTING JUDGES: Dore, J., Dolliver, C.J., Goodloe, J., and Petrie, J. Pro Tem., dissent by separate opinion; Callow and Durham, JJ., did not participate in the disposition of this case.
NATURE OF ACTION: A former savings and loan association employee sought damages for defamation from a person who, in response to the plaintiff's requests for payment on a contract, had informed the plaintiff's employer that the payment was for the plaintiff's help in arranging financing for a development.
Superior Court: The Superior Court for Whatcom County, No. 80 2-00315-8, Marshall Forrest, J., granted a summary judgment in favor of the defendant on June 3, 1982.
Court of Appeals: The court AFFIRMED the judgment in an unpublished opinion noted at 39 Wn. App. 1024.
Supreme Court: Holding that there was insufficient evidence that the defendant had made oral defamatory statements or had acted negligently and that a letter written by the defendant's attorney constituted nonactionable opinion, the court AFFIRMS the decision of the Court of Appeals and the judgment.
COUNSEL: MICHAEL K. TASKER and HINDMAN & TASKER, for petitioners.
MCCUSH, KINGSBURY, O'CONNOR, LUDWIGSON, THOMPSON & HAYES, by JOHN S. LUDWIGSON, for respondents.
MAJORITY OPINION: Marlin Dunlap, plaintiff below, brought a defamation action against Dr. Marvin Wayne. The trial court ruled that a qualified privilege protected any communication of the defendant's, and dismissed the action on summary judgment. The Court of Appeals affirmed, holding that the communication at issue was constitutionally protected opinion. Dunlap appeals this adverse determination. Although we decline to reach the constitutional issue, we affirm the decision of the Court of Appeals.
the project. . . .
Deposition of Marvin A. Wayne (plaintiff's exhibit 1).
One partner testified that the partnership promised the money to encourage Dunlap to arrange financing. Koivisto testified that Dunlap did help Koivisto prepare loan applications, including one for the Bank. Wayne has introduced into evidence a letter that Dunlap wrote to apply for financing from a California firm; the letter is written on Bank stationery and is dated June 5, 1978.
(Italics ours.) Deposition of Marvin A. Wayne (plaintiff's exhibit 2).
When Dunlap persisted in his requests for payment, Wayne called the Bank's president and told him of Dunlap's attempts to collect the $10,000. The president asked Wayne for documentation, and Wayne agreed to provide it. On about March 20, 1980, Wayne and his attorney met in the attorney's office with the executive vice-president of the Bank. At that meeting, Wayne detailed the history of his dealings with Dunlap and provided the documentation requested by the Bank president. Included in this documentation were the payment agreement, Dunlap's collection letters, and the letter from Wayne's attorney.
The president met with Dunlap after speaking with the vice president and receiving the documentation. Dunlap maintains that the president told him that Wayne had complained of Dunlap's attempts to solicit kickbacks and engage in shakedowns. Wayne, however, denied using those terms. The president also denied using those terms and did not recall Wayne's use of the terms. The Bank fired Dunlap in March 1980. The Bank president indicated that Dunlap's involvement in the condominium project was a factor contributing to his decision to fire him, but not the principal one.
Dunlap then initiated this action for defamation against Wayne. The trial court dismissed the case on summary judgment, holding that Wayne's communications with the Bank officials enjoyed the qualified privilege of "common interest."
The Court of Appeals concluded in an unpublished opinion that the special relationship necessary to give rise to a qualified privilege did not exist. The court nonetheless affirmed the summary judgment. Relying on MARK v. SEATTLE TIMES, 96 Wn.2d 473, 487, 635 P.2d 1081 (1981), CERT. DENIED, 457 U.S. 1124 (1982), the court concluded that Dunlap had not presented clear and convincing evidence of oral statements constituting defamation. The court also concluded that the attorney's letter was an expression of opinion, and that the statement was protected by the First Amendment as construed by the United States Supreme Court in GERTZ v. ROBERT WELCH, INC., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974).
The standard that controls the defendant's motion to dismiss this defamation case needs clarification. In MARK v. SEATTLE TIMES, SUPRA, we concluded that for "policy reasons, rooted in the First Amendment," a defamation plaintiff must establish a prima facie case of "convincing clarity" to defeat a defense motion for summary judgment. That decision involved a media defendant, as have other decisions in which the MARK standard was invoked. SEE, E.G., CHASE v. DAILY RECORD, INC., 83 Wn.2d 37, 43, 515 P.2d 154 (1973); RYE v. SEATTLE TIMES CO., 37 Wn. App. 45, 678 P.2d 1282 (1984); SIMS v. KIRO, INC., 20 Wn. App. 229, 237, 580 P.2d 642 (1978), CERT. DENIED, 441 U.S. 945 (1979).
«1» We cannot tell how the United States Supreme Court will apply the First Amendment in this area. In ROSENBLOOM v. METROMEDIA, INC., 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971), a plurality of the Supreme Court recognized that the mere threat of expense of defending against a defamation suit can have a chilling effect on the media. However, Justice Rehnquist suggested in CALDER v. JONES, 465 U.S. 783, 79 L. Ed. 2d 804, 813, 104 S. Ct. 1482 (1984) that the Court recognizes no special rules protecting defendants in summary judgment actions. This term the Supreme Court is considering this very issue in Anderson v. Liberty Lobby, No. 84-1602 (argued December 3, 1985). In any event, the Washington Constitution may provide heightened protection to media defendants. Const. art. 1, 5; SEE STATE v. COE, 101 Wn.2d 364, 679 P.2d 353 (1984).
A basic cost of defamation law is its potential chilling effect on the press. Note, THE ROLE OF SUMMARY JUDGMENT IN POLITICAL LIBEL CASES, 52 S. Cal. L. Rev. 1783, 1793 (1979). However, the balance between First Amendment concerns of free speech and the individual's interest in reputation tips differently when a private individual sues a private individual for a statement about private concerns. This court has recognized that the importance of a private individual's reputation interest can counter First Amendment concerns. TASKETT v. KING BROADCASTING CO., 86 Wn.2d 439, 444-47, 546 P.2d 81 (1976). Likewise, the United States Supreme Court has restricted First Amendment protection for statements about private affairs.
of self-censorship by the press. . . ." (Citations omitted.) DUN & BRADSTREET, INC. v. GREENMOSS BUILDERS, INC., _____ U.S. _____, 86 L. Ed. 2d 593, 105 S. Ct. 2939, 2946 (1985) (quoting in part from CONNICK v. MYERS, 461 U.S. 138, 145, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) and HARLEY-DAVIDSON MOTORSPORTS, INC. v. MARKLEY, 279 Or. 361, 366, 568 P.2d 1359, 1363 (1977)).
For these reasons, this plaintiff should not have to meet the "convincing clarity" burden of proof that MARK v. SEATTLE TIMES, SUPRA, imposed. The strict standard of MARK should not protect a nonmedia defendant sued for a statement about private affairs. Instead, the usual rules governing summary judgment should control. Under these rules, the trial court properly dismissed Dunlap's case if no genuine issue of material fact exists when the evidence and all reasonable inferences from the evidence are considered in the light most favorable to Dunlap. CR 56(c); WENDLE v. FARROW, 102 Wn.2d 380, 686 P.2d 480 (1984).
The Court of Appeals affirmed summary judgment dismissal of the plaintiff's allegations that the defendant made oral defamatory statements to Bank officials. This conclusion is correct even without the strict summary judgment standard of MARK v. SEATTLE TIMES, SUPRA. For the following reasons we agree with the courts below that the plaintiff has failed to create a genuine issue of fact.
 First, the plaintiff has offered inadmissible hearsay to establish that Wayne made oral defamatory statements. A court cannot consider inadmissible evidence when ruling on a motion for summary judgment. CHARBONNEAU v. WILBUR ELLIS CO., 9 Wn. App. 474, 512 P.2d 1126 (1973). The Washington Rules of Evidence define hearsay as an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c). Plaintiff's only evidence of the alleged statements consists of his and his wife's descriptions of their conversation with the Bank president. Both allege that the president told them that Wayne had complained of Dunlap's insisting on a "kickback." The plaintiff is therefore trying to use out-of-court statements of the Bank president to prove that the defendant made an oral defamatory statement. Even if Wayne's alleged out-of-court oral defamatory statement is itself admissible, the plaintiff cannot introduce it by repeating the Bank president's out-of-court statement. 6 J. Wigmore, EVIDENCE 1770(2), at 265 n.6 (rev. ed. 1976); SANDERSON v. MOLINE, 7 Wn. App. 439, 443, 499 P.2d 1281 (1972).
Second, the plaintiff contends that a court can and should draw an inference from the evidence presented that the defendant made oral defamatory statements charging the plaintiff with soliciting a kickback. As the plaintiff argues, undisputed facts reveal that (1) in the letter, the defendant's attorney threatened to notify the Bank of the plaintiff's "solicitation of kick-backs", (2) defendant Wayne did in fact contact the Bank, and (3) the Bank fired plaintiff Dunlap for his participation in the defendant's business.
 This suggested inference does not qualify as evidence. A party must provide affirmative factual evidence to oppose a motion for summary judgment. CR 56(e); MACKEY v. GRAHAM, 99 Wn.2d 572, 663 P.2d 490, CERT. DENIED, 464 U.S. 894 (1983). Moreover, the plaintiff asks this court to disregard the testimony of Bank officials to draw the suggested inference. The Bank president denied that he or Wayne used the words "kickback" or "shakedown." The Bank official who met with defendant Wayne also denied that Wayne used the words "kickback" or "shakedown" to characterize Dunlap's conduct. To raise an issue of credibility at a hearing on a motion for summary judgment, the nonmoving party must present contradictory evidence or otherwise impeach the evidence of the moving party. SEE BALISE v. UNDERWOOD, 62 Wn.2d 195, 200, 381 P.2d 966 (1963); COWICHE BASIN PARTNERSHIP v. MAYER, 40 Wn. App. 223, 228, 698 P.2d 567 (1985). The plaintiff has not placed the credibility of these Bank officials into issue with admissible contradictory or impeaching evidence.
The letter written by the defendant's attorney, which the defendant gave to Bank officials, is the sole remaining potential source of liability. Wayne can be liable for transmitting the letter to the Bank even though he did not write the letter himself. SEE Restatement (Second) of Torts 581(1) (1977) (hereinafter Restatement). However, the Court of Appeals concluded that the allegedly defamatory statements in the letter constitute nonactionable statements of opinion. We agree.
English-American defamation law has always distinguished between fact and opinion. Keeton, DEFAMATION AND FREEDOM OF THE PRESS, 54 Tex. L. Rev. 1221, 1240 (1976). Traditionally, the privilege of "fair comment" protected statements of opinion on matters of public interest. Keeton, SUPRA; SEE, E.G., MILES v. LOUIS WASMER, INC., 172 Wash. 466, 20 P.2d 847 (1933). Statements of opinion on matters of private concern enjoyed a less certain status. Apparently, the traditional defense for a statement of opinion on private affairs was "justification," which was an assertion that to the extent the statement was fact, it was true, and to the extent it was opinion, it was justifiable. Hill, DEFAMATION AND PRIVACY UNDER THE FIRST AMENDMENT, 76 Colum. L. Rev. 1205, 1236-37 (1976).
defamatory facts as the basis for the opinion.
Restatement 566, at 170; SEE ALSO 566, comment C, at 172.
At least one court has expressly extended the dicta of GERTZ to afford constitutional protection to statements of opinion about private matters. SEE BUCHER v. ROBERTS, 198 Colo. 1, 3-5, 595 P.2d 239, 241-42 (1979). SEE ALSO BENJAMIN v. COWLES PUB'G CO., 37 Wn. App. 916, 684 P.2d 739 (1984). Other courts, however, have simply applied Restatement 566. SEE, E.G., AVINS v. WHITE, 627 F.2d 637, 642 (3d Cir.), CERT. DENIED, 449 U.S. 982, 66 L. Ed. 2d 244, 101 S. Ct. 398 (1980) (predicting how Delaware courts would rule); MACCONNELL v. MITTEN, 131 Ariz. 22, 25, 638 P.2d 689, 692 (1981); BECKMAN v. DUNN, 276 Pa. Super. 527, 535-36, 419 A.2d 583, 587 (1980).
 We believe the rule of Restatement 566 should be adopted. It is unnecessary to reach the issue of constitutional protection of statements of opinion on private affairs. Common law principles are sufficient to support the conclusion that statements of "pure" opinion should be nonactionable. SEE, E.G., Keeton, at 1240, 1248-49.
The struggles of courts and commentators illustrate the difficulty of determining whether a statement is nonactionable opinion. SEE, E.G., OLLMAN v. EVANS, 750 F.2d 970 (D.C. Cir. 1984) (10 person court produced nine opinions on the issue). SEE ALSO Restatement 566, comment B; Keeton, at 1249-59. Some have pointed out that courts should not focus on establishing a rigid distinction between "fact" and "opinion"; they argue that courts instead should focus on establishing factors to identify whether a statement is actionable. SEE, E.G., Note, FACT AND OPINION AFTER GERTZ v. ROBERT WELCH, INC.: THE EVOLUTION OF A PRIVILEGE, 34 Rutgers L. Rev. 81, 114, 122-27 (1981). Courts accordingly have adopted multifactor tests to distinguish actionable from nonactionable statements. SEE OLLMAN v. EVANS, 750 F.2d at 979-84 (4-factor test); INFORMATION CONTROL CORP. v. GENESIS ONE COMPUTER CORP., 611 F.2d 781, 783 84 (9th Cir. 1980) (3-factor test). The Washington Court of Appeals has adopted a 3-factor test. BENJAMIN v. COWLES PUB'G CO., 37 Wn. App. at 923. These courts emphasize the importance of considering the totality of circumstances in which a statement was made.
We agree that examining a statement in the totality of the circumstances in which it was made is the best means to determine whether a statement should be characterized as nonactionable opinion. To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.
First, the nature of the medium can affect whether a statement is received as "fact" or "opinion": statements of opinion are expected to be found more often in certain contexts, such as editorial pages or political debates. The court should consider the entire communication and note whether the speaker qualified the defamatory statement with cautionary "terms of apparency." INFORMATION CONTROL CORP., 611 F.2d at 784. Second, the nature of the audience is important. As one commentator writes: "Paramount are audience expectations. In the context of ongoing public debates, the audience is prepared for mischaracterizations and exaggerations, and is likely to view such representations with an awareness of the subjective biases of the speaker." Note, 34 Rutgers L. Rev. at 122. The court should thus consider whether the audience expected the speaker to use exaggeration, rhetoric, or hyperbole.
unreasonable the opinion may be or how derogatory it is.
Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves.
necessarily in the same category of actionability as .
about the plaintiff . . .
«2» The Court of Appeals decided this issue as a question of law. Several courts have concluded that when a statement is ambiguous, and can be characterized as either fact or opinion, its characterization becomes a question of fact for the jury. SEE, E.G., GOOD GOV'T GROUP OF SEAL BEACH, INC. v. SUPERIOR COURT, 22 Cal. 3d 672, 681-82, 586 P.2d 572, 576, 150 Cal. Rptr. 258 (1978); MYERS v. BOSTON MAGAZINE CO., 380 Mass. 336, 403 N.E.2d 376 (1980); NEVADA INDEP. BROADCASTING CORP. v. ALLEN, 99 Nev. 404, 410-11, 664 P.2d 337, 342 (1983); KUTZ v. INDEPENDENT PUB'G CO., 97 N.M. 243, 638 P.2d 1088 (Ct. App. 1981). SEE ALSO Restatement (Second) of Torts 566, comment C (1977). We need not reach this issue in this case. The circumstances of the communication at issue dispel any ambiguity.
First, the medium by which the statement was published is a letter written during negotiations by one attorney to another. Statements of opinion and exaggeration should be expected in such a context. Most individuals would probably react to the letter as Wayne did: "I assumed that that was how lawyers talked to lawyers." Wayne Deposition of July 23, 1980, at 12.
Second, the audience consisted of Bank officials prepared to discuss Wayne's complaints about Dunlap. The officials should have been prepared for mischaracterization and exaggeration. They had reason to consider carefully the subjective biases of Wayne and his attorney in order to avoid wrongly firing the plaintiff. In short, they had reason to treat the statement as opinion, not fact.
Finally, the statement was published in circumstances in which the audience knew the facts underlying the statement. Shortly after Wayne initially contacted the Bank, a meeting was set up to discuss his complaints about Dunlap. A vice-president, Mr. Bell, accordingly drove to Bellingham and met with Dr. Wayne in his attorney's office. Wayne and Bell both testified that during this meeting Wayne described his relationship with Dunlap and the basis of his complaints of harassment. It was also at this meeting that Wayne's attorney provided the Bank with documentation that included the letter at issue. The letter thus was transmitted to Bank officials in conjunction with a meeting convened for the very purpose of disclosing the basis of the defendant's complaints about the plaintiff. The defendant's disclosure of the facts underlying his complaint during the meeting places the statement contained in the letter within the protection of Restatement 566.
 We also note that summary judgment dismissal is appropriate because the plaintiff has failed to place into issue material facts necessary to prove his case. This court has consistently held since MARK v. SEATTLE TIMES, 96 Wn.2d 473, 635 P.2d 1081 (1981), CERT. DENIED, 457 U.S. 1124 (1982), that a plaintiff suing for defamation must establish "fault" as one of the elements of defamation. We have concluded further that a private individual need prove only negligence in order to establish "fault." TASKETT v. KING BROADCASTING CO., 86 Wn.2d 439, 546 P.2d 81 (1976). Thus Dunlap must prove that Wayne acted negligently in order to establish a prima facie case of defamation. Dunlap is unable to provide the evidence necessary even to create an issue of fact about any fault involved in Wayne's conduct.
In the court below defendant Wayne moved for summary judgment alleging that a qualified privilege protected his publication of the letter and that he had not abused that privilege. To decide whether Wayne had abused his alleged privilege, the trial court had to consider whether Wayne acted (1) without fair and impartial investigation, or (2) without reasonable grounds for believing in the truth of the statement. GEM TRADING CO. v. CUDAHY CORP., 92 Wn.2d 956, 959-60, 603 P.2d 828 (1979); TWELKER v. SHANNON & WILSON, INC., 88 Wn.2d 473, 564 P.2d 1131 (1977). This inquiry is virtually identical to the inquiry into whether Wayne acted negligently. CF. TASKETT, 86 Wn.2d at 445.
The trial court concluded that the plaintiff had not provided any facts from which a jury would be entitled to find unreasonable conduct. Our review of the record supports the trial court's conclusion. The plaintiff has not provided any admissible evidence of the defendant personally making a defamatory statement. The only defamatory statement at issue is a characterization made by defendant's attorney in a letter. The defendant's attorney transmitted this statement to the Bank only in conjunction with a meeting convened to discuss the defendant's complaints. In short, Dunlap has not provided any specific facts that suggest that Wayne acted without due care when he allowed his attorney to provide the Bank documentation to support Wayne's complaints about Dunlap.
The purpose of dismissing a case by summary judgment is to avoid a useless trial when no genuine issue of a material fact exists. The law of defamation provides a bewildering array of defense theories, and the three court opinions produced by this case seem to have explored most of those theories. In the end we conclude that the trial court was correct when it dismissed Dunlap's defamation suit. However, we choose two different theories. First, in these circumstances the statement in Wayne's attorney's letter constituted nonactionable opinion. Second, Dunlap failed to establish a prima facie case of defamation. Defamation simply is the incorrect theory by which to redress any wrongs done Dunlap by the partnership. For these reasons, the judgment of the trial court is affirmed.
CONCURRING JUDGES: Brachtenbach, Pearson, and Andersen, JJ., and Morgan, J. Pro Tem., concur.
DISSENTING OPINION: The majority characterizes the allegedly defamatory remarks in the letter Dr. Wayne presented to Dunlap's employer as nonactionable statements of opinion. As a result, the majority upholds a summary judgment dismissal of the plaintiff's defamation suit. I cannot agree with this court's characterization of this letter, and therefore I would overturn the trial court's summary judgment and remand the case for trial.
(Italics mine.) Restatement (Second) of Torts 566, at 170 (1977). I believe that the letter does imply allegations of undisclosed facts which are defamatory to Dunlap, and I would not deny Dunlap's right to damages before trial by holding the letter is a nonactionable opinion.
The letter states in part that "[i]t appears from the background information . . . that this Agreement . . . constitutes a solicitation for a 'kick-back' to Mr. Dunlap for his services in trying to obtain financing from, among other sources, his own savings and loan association." Brief of Appellant, exhibit 1. The majority focuses on the word "kick-back" and holds that this was an opinion characterizing the actions of the plaintiff. This may be true. Nevertheless the majority in my mind ignores that it is not this characterization which is actionable, but the allegation of underlying facts on which it is based.
The defendant has stated that Dunlap attempted to enforce an agreement compensating him for services in trying to obtain financing for the condominium project. Such action would be highly improper for a man in Dunlap's position, irrespective of whether the defendant labels it a "kick-back" or any other term. Dr. Wayne's publication of the letter implying the facts surrounding the "kick-back" in my mind therefore, if incorrect (which must be assumed for the purpose of this summary judgment motion) is actionable.
In other cases we have held that a statement about an employee which implies by opinion defamatory facts is actionable. GETCHELL v. AUTO BAR SYS. NORTHWEST, INC., 73 Wn.2d 831, 440 P.2d 843 (1968) (previous employer's statements that plaintiff wrongly retained company funds actionable); ROMANO v. UNITED BUCKINGHAM FREIGHT LINES, 4 Wn. App. 929, 484 P.2d 450 (1971) (previous employer's comment that plaintiffs were dishonest actionable). This is especially true when the facts which the defendant alleges are compared with the facts asserted by the plaintiff. Dunlap has submitted affidavits and depositions which, if true, tell a story materially different from Dr. Wayne's. Dunlap asserts that he located the real estate to be used for the condominium on his own time, but lacked the financial resources to develop it. He therefore told a friend, Robert Koivisto, about the project, and Koivisto formed a partnership with Dr. Wayne and two others to acquire and develop the land. Dunlap, on his own time, and with his wife's help in typing various documents, consulted with the partnership and offered valuable advice, spending as much as 100 hours on the project.
Furthermore, the partnership agreed to pay Dunlap in January 1978 at Koivisto's, and not Dunlap's, request. It was not until April 1978 that the partnership sought financing, and Dunlap played no role in the partnership's attempt to secure financing with Dunlap's bank. Dunlap's bank in fact denied its application. The only assistance which Dunlap gave the partnership to obtain financing was one letter written on its behalf to another financing company located in Southern California.
If these facts are true, then the defendant's publication of a letter to Dunlap's employer stating that the agreement between the partnership and Dunlap was a solicitation for a "kick-back" is defamatory. The question is not whether the word "kick-back" is a nonactionable opinion, but whether the word implies undisclosed facts which are defamatory. I believe it does, and I would reverse the Court of Appeals and remand this case to trial.
CONCURRING JUDGES: Dolliver, C.J., Goodloe, J., and Petrie, J. Pro Tem., concur with Dore, J.

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