ROBERT E. SWANSON, Complainant
VS.
PROPOSED DECISION AND ORDER
LEE DAHL MOTORS,
Respondent.
FINDINGS OF FACT
Jurisdictional
Facts:
1. The Complainant filed
a verified complaint CP # 04-85- 12879 with the Iowa Civil Rights
Commission, on April 9, 1985, alleging violation of Iowa Code
section 601A.6 which prohibits discrimination in employment on
the basis of age. The dates of incidents of alleged discrimination
are stated in the text of the complaint as November 15, 1984,
November 17, 1984 and February 6, 1985. Official notice is taken
of the fact that there are one hundred forty-five calendar days
between November 15, 1984 and April 9, 1985. Fairness to the parties
does not require that they be given an opportunity to contest
this fact.
2. The complaint was investigated. After probable cause was found, conciliation was attempted and failed. (C. Ex. B; Notice of Hearing). Notice of Hearing was issued on February 2, 1988. An order providing for a continuance until a new Administrative Law Judge was assigned to hear the case was issued on September 7, 1988. The final hearing date was set by an order dated February 1, 1989.
The Advertisement:
3. In November of 1984, Complainant Robert Swanson, who was then forty-four years old, saw a newspaper advertisement placed by the Respondent Lee Dahl Motors for a full time "sales representative opening". Jr. at 10, 70; C. Ex. A, D). The advertisement stated, in part:
We require certain qualifications:
1. Sales experience - benificial (sic)
2. Age 21-35
3. Must be aggressive and want to work
4. Neat appearance
(C. Ex. A)(italics added).
4. This advertisement was drafted by Lee Dahl, president of Lee Dahl Motors Company. (Tr. at 69-70). Lee Dahl had the final authority to hire sales representatives. (Tr. at 90-91). The advertisement was reviewed by him after publication and he made no changes. (Tr. at 77). The Respondent paid for this advertisement. (Tr. at 70). It was published in the classified section of the Clinton Herald nine times during the period of November 9-19, 1984. (C. Ex. C; Tr. at 82). It was also published approximately four times in the DeWitt Observer over a ten day period in November of 1984. (Tr. at 81-82).
5. The Respondent's age requirement was implemented because "Respondent preferred someone of a younger age to balance its salespersons work force. . ." (C. Ex. C- interrogatory answer submitted by Lee Dahl). This opening was originally intended to be for a new position, it was not an opening which resulted from a sales representative leaving and creating a vacancy. (R. Ex. 2; Tr. at 85). The reasons for the age requirement listed in this advertisement were described in greater detail in Lee Dahl's testimony:
[A]t that time, in 1984, we had four salesmen, and three of the salesmen were middle-aged, 50 and older.
Q. Yes
A. And the other salesman was a younger man, age 30, and we were looking for a younger man who could blend in with our business and, hopefully, have a longevity with our business. We also, along the lines of wanting a young man We're in a small town, in De Witt, Iowa. We all have our own social contacts. The olders have the social contact with their age group. Our idea was that we wanted a younger man that would have the younger social contacts, and that was our thinking on that.
...
I wanted him to blend in with my two sons.
Q. Okay. How old were your two sons back in November of 1984?
A. Dan was probably 28, and Tim was 27, thereabouts.
...[I]f you have social contacts, eventually people will come to see you. Furthermore, when you have a younger person, they can communicate better at their age level than an older person communicating with a younger person.
(Tr. at 72-73, 74, 76).
6. In its Response to Charge
of Discrimination, Respondent Lee Dahl Motors stated that
"Reference to age inserted in said ad was by inadvertence."
(C. Ex. D). Lee Dahl later explained this comment as meaning "A
particular age was not to be a mandatory requirement." (C.
Ex. C). Both of these statements are false and utterly unsupported
by credible evidence.
7. The insertion of the
reference to age in the advertisement by Lee Dahl Motors was
deliberate and not inadvertent. See Findings of Fact Nos. 3-5.
The reference to age was, according to the advertisement's own
terms, a requirement for consideration for the position. See Finding
of Fact No. 3. The only "qualification" listed in the
advertisement which had any indication of being optional was the
one for "sales experience" which had a notation implying
that such experience would be beneficial, but not required. See
Finding of Fact No. 3. Sales experience, in fact, was not a mandatory
requirement for the position advertised. (Tr. at 72). Respondent
Lee Dahl Motors has hired sales representatives with no experience.
(Tr. at 111).
7A. With the exception of age, Complainant Swanson met all the required qualifications stated in the advertisement. His aggressiveness and willingness to work are demonstrated both by his applying for the position despite the age restriction given in the advertisement, and by his repeated efforts to contact Lee Dahl to ascertain the status of his application. (R. Ex. 4; Tr. at 15, 18, 20). He wanted the job. (Tr. at 33). His neatness of appearance, which exceeded that required by Lee Dahl, was demonstrated by his wearing a sport coat, tie, and shirt when he met with Dan Dahl. (Tr. at 24, 168). Although not required, he did have some sales experience selling airplanes. (R. Ex. 4; Tr. at 149).
Overview of the Application And Hiring Process:
8. Complainant Swanson applied
for the position on or about November 12, 1984. (R. Ex. 4; Tr.
at 15, 18). He went to the Respondent's place of business on that
date and requested and received an application from Dan Dahl,
General Manager of Lee Dahl Motors. (Tr. at 11, 18, 120-21, 168).
Dan Dahl handled direct contact with the applicants. (Tr. at 77).
Complainant Swanson took the application home, completed it, and
returned it to Dan Dahl at Lee Dahl Motors on either November
12th or 13th, 1984. (Tr. at 15-17, 120- 21). Although the contrary
is asserted by the Respondent, at no time did Complainant Swanson
verbally discuss the age requirement with Dan Dahl or other Lee
Dahl Motors personnel. Jr. at 18, 168).
9. Beginning approximately
two days after he applied, Complainant Swanson repeatedly contacted
the Respondent in order to ascertain the status of his application.
(Tr. at 20, 29, 31, 122). He tried, unsuccessfully, to talk to
Lee Dahl, but did talk to Dan Dahl. (Tr. at 20, 122). He was initially
informed by Dan Dahl either that the Respondent was still taking
applications or that the applications had not yet been reviewed.
(Tr. at 122).
10. At some time before
December 3, 1984, the Respondent decided to place the application
process on "hold" due to adverse economic news concerning
layoffs and plant closings in the Respondent's market area. (R.
Ex. 2; Tr. at 85-86). The Complainant was first informed of this
decision during one of his telephone contacts with the Respondent.
(Tr. at 29, 31). He and all other applicants
were sent a letter on
December 3, 1984, indicating that "Due to the climate of
our business, we are putting all applicants on hold and we will
re-appraise your application at a later date." (R. Ex. 2;
Tr. at 29, 88).
11. James C. Triplett, age
33, was subsequently hired as a sales representative on January
18, 1985 by Lee Dahl. (C. Ex. C-Triplett application, D-admissions;
Tr. at 91). Mr. Triplett's employment began effective January
25, 1985. (R. Ex. 6). Complainant Swanson was neither interviewed
nor hired for the position. (C. Ex. D; Tr. at 13, 17, 23). He
learned that Lee Dahl Motors had hired a new sales representative
younger than himself through an advertisement showing Mr. Triplett.
(Tr. at 23).
Respondent's Position
on Factual Issues Relating to the Hiring Process:
12. In its Response to Charge of Discrimination, Respondent Lee Dahl Motors denied that age was a factor in the Complainant's not being interviewed or hired. (C. Ex. D). There are several additional factual contentions concerning the application and hiring process which are raised as "affirmative allegations" by the Respondent in this Response, (C. Ex. D), and discussed on brief. These contentions may be summarized as follows:
a. Respondent invited the Complainant to submit an application and advised him that age would not be a factor in the selection.
b. The advertised sales representative position was to be a newly created position and did not fill a present vacancy.
c. No one was hired for the advertised position after it was put on hold due to adverse economic conditions.
d. A different sales representative position became open when, late in December 1984, D.V. Wieck, who had been employed as a sales representative since 1971, informed the Respondent that he would retire in April of 1985.
e. Once the new position was open, auto sales experience became a desired qualification because an experienced employee was being replaced. The Respondent contacted and interviewed only James Triplett because of his auto sales experience and personality.
f. The
Complainant was not seriously considered for this sales representative
position because of his lack of auto sales experience and because
he had written annoying and threatening letters to the Respondent.
Contentions "a"
and "b" have already been considered. See Findings of
Fact Nos. 8 & 10.
Age - A Motivating Factor
in the Decision to Not Interview or Hire the Complainant:
13. The greater weight of
the evidence, both direct and circumstantial, demonstrates that
age was a motivating factor in the decisions to not interview
or hire Complainant Swanson for the sales representative position.
This evidence, including repeated admissions in the testimony
of Lee Dahl and Dan Dahl, demonstrates that the Respondent had
determined from the outset of the hiring process that only persons
between the ages of 21 to 35 inclusive would be considered for
sales representative positions. See Findings of Fact Nos. 3-7.
(C. Ex. A, C; Tr. at 72-74, 76-77, 96, 124, 135- 36). The denials
of age discrimination by Lee Dahl and Dan Dahl are simply not
believable in light of the evidence to the contrary, including
their own contradictory testimony. (Tr. at 77, 103, 124).
14. Complainant Swanson
was too old to be within the preferred age category, while preferred
candidate Triplett's age fell within the required range of ages.
See Findings of Fact Nos. 3, 11. Their applications listed their
birth dates as, respectively, 10/8/40" for Complainant Swanson
and .... 9/14/51" for James Triplett in the upper left portion
of the first page of the Respondent's application form immediately
below the applicant's name and address. (C. Ex. C; R. Ex. 4).
Before Lee Dahl ever met Mr. Triplett, he was aware of his age
from his application materials. (Tr. at 111).
15. Any contention that
age was not a factor in the rejection of the Complainant for the
position filled by James Triplett must be rejected in light of
the Respondent's admitted desire to "balance" its sales
force. (Tr. at 103). See Finding of Fact No. 5. If Triplett actually
filled a vacancy in the four man sales force created by the retirement
of Wieck, the composition of the sales force would change from
three sales representatives of over 50 and one in his 30s to two
sales representatives over 50 and two in their 30s, an evenly
balanced sales force. See Finding of Fact No. 5. If there actually
was no vacancy created by the retirement of Wieck, but Triplett
filled a new position, then the balance would be exactly as desired
by Lee Dahl at the time the advertisement was placed, i.e. three
salesmen over 50 and two in their 30s. See Finding of Fact No.
5. Even as late as May of 1986, when Respondent Lee Dahl Motors
hired Richard Cheney, age 32, the Respondent was still hiring
younger sales representatives in order to balance the age distribution
of the sales work force. (R. Ex. 6; Tr. at 96).
Retaliation - A Motivating
Factor in the Decision to Not Interview or Hire the Complainant:
16. Complainant Swanson
sent two typed letters, dated December 3, 1984 and December 6,
1984, respectively, to Lee Dahl at Lee Dahl Motors. The letter of December
3rd accuses Lee Dahl of violating the Complainant's civil rights
through the age limits in the advertisements for the sales representative
position. (R. Ex. 1). It states that Complainant Swanson is prepared
to go to court or initiate administrative proceedings if necessary.
(R. Ex. 1). It closes by stating:
What I need is a job and since the legal precedants (sic) are quite clear in my favor and the physical evidence, the ads, is also conclusive, I would suggest to you that it would be in your best interest if you hired me for the job. I ask that you hire me for the position you advertised. In addition, I ask that you place in escrow an amount of money Equal to Six Months Earnings for this position, in order to prevent a retaliatory discharge after I am hired.
Be assured that it will cost you a lot more than this if we have to go to court.
(R. Ex. 1).
17. The letter of December
6th indicates strong disagreement with the Respondent's letter
of December 3rd informing Complainant Swanson that the position
was on hold for economic reasons. (R. Ex. 3). The Complainant's
letter states "You have shown what a triky, (sic) underhanded
person you are by not admitting your guilt." It indicates
that the Complainant has sent for complaint forms from various
employment law agencies including this Commission and that he
intends to file a lawsuit. It closes by stating:
The best wishes you extented (sic) for the holiday season are rather hollow considering my family will not be having much of a Christmas. (sic) WE cant (sic) even afford to buy any presents for our Daughter. I hate having to do what I must do, but I am tired of not being hired because of my age, and if you think that by waiting a while (sic) I will just go a way (sic) or forget about this you are sadly mistaken. I will be watching your dealership and certainly recommend to my freinds (sic) that they not buy any cars fom (sic) you. Of course they are (sic) all over 40.
(R. Ex. 3).
18. Respondent Lee Dahl
Motors admits that these letters, which it describes as "annoying
and threatening correspondence," were part of the reason
for its not hiring or interviewing Complainant Swanson. (C. Ex.
C, D; Tr. at 88-90, 97, 101-02). On brief, Respondent described
the letter of December 3rd as one which "borders on blackmail"
because the Complainant indicated he would sue unless he received
the remedies of being hired for the position and for six months
salary to be placed in escrow as a protection against retaliatory
discharge. Respondent's Brief at 7. Lee Dahl summarized the Respondent's
position by testifying that he could not hire the complainant
and have an employer-employee relationship under these conditions,
i.e. that he would be forced to hire the Complainant because he
had violated his civil rights. (Tr. at 97).
19. Complainant Swanson
wrote these letters based on the reasonable and correct beliefs
that (a) the advertisement was itself in violation of the Iowa
Civil Rights Act; and (b) the advertisement indicated that he
would not be hired because of his age, which was also a violation
of the Iowa Civil Rights Act. (R. Ex. 1, 3). See Conclusions of
Law No. 2, Complainant Swanson wrote these letters in order to
oppose these discriminatory practices and in order to receive
the remedies he reasonably thought were due him for violation
of his civil rights under this Act. (Tr. at 32, 160-61 ). Although
his letters were strongly worded, it was not unreasonable for
him to indicate he would use the legal process provided by the
Act in order to remedy overt discrimination against him on the
basis of age. (R. Ex. 1, 3).
20. At the conclusion of
the hearing, the Complainant made a motion to amend the complaint
in order to include the allegation that the Respondent retaliated
against the Complainant for engaging in the protected activities
of reporting or complaining about a perceived or actual civil
rights violation in Complainant Swanson's letters dated December
3, 1984 and December 6, 1984, respectively. (Tr. at 170-72). The
Respondent objected to this motion on the grounds that such amendment
was untimely and that the resolution of this issue would require
the filing of another complaint. (Tr. at 172-73). The following
findings of fact are important to the resolution of this motion.
21. The issue of whether the Complainant's correspondence to the Respondent constituted part of the reason for failure to hire the Complainant was originally raised by the Respondent in its Response to Charge of Discrimination sent in response to the Notice of Hearing and filed with the Commission on February 24, 1988. (C. Ex. D). Respondent made no objection as to the relevancy or materiality of questioning of any witness about these letters. It is clear that the Respondent stipulated to the admission of these letters as exhibits because it felt the content of these letters constituted a legitimate, nondiscriminatory reason for rejection of the Complainant. (C. Ex. D; Tr. at 27-28; Respondent's Brief at 7). It therefore knew or should have known that the asserted lawfulness and non-discriminatory nature of these letters could be an issue at the hearing. (C. Ex. D; Respondent's Brief at 7).
Credibility Findings:
22. The testimony of both Lee Dahl and Dan Dahl was highly
unreliable and, with few exceptions, is cited in support of a
finding of fact only when it constituted an admission against
the interest of the Respondent or when supported by credible evidence
or other indicia of reliability. Both Lee Dahl and Dan Dahl gave
testimony that was inconsistent and contradictory. Each of them
willfully testified falsely in regard to certain aspects, stated
in detail below, of the question of whether age was a factor in
the consideration of applicants, including the Complainant, for
sales representative positions.
23. In his sworn answer
to written interrogatories, Lee Dahl stated that "A particular
age was not to be a mandatory requirement." (C. Ex. C). This
answer has already been found to be false in light of the language
of the advertisement, which was drafted, reviewed and approved
by Lee Dahl, and of his statement of reasons for wanting a sales
representative whose age was between 21 and 35 inclusive. See
Findings of Fact Nos. 6 & 7. Shortly after admitting drafting
and approving the advertisement with the explicit age requirement,
and describing in detail why he wanted a young candidate for the
sales representative position, Lee Dahl testified that "age
was no variable really." (Tr. at 70-74, 76-77). That statement
is also false. (The Administrative Law Judge's notes indicate
he stated "barrier", not "variable." In either
case, the statement is false.)
24. Lee Dahl testified that
he did not inform Dan Dahl of the age requirement for the sales
representative position. (Tr. at 77). Dan Dahl's familiarity with
the advertisement's age requirement and, especially, with the
reasons for the requirement, demonstrates that this statement
is also false. (Tr. at 118, 123-24, 135-36). Also, given Dan Dahl's
involvement in the hiring process, it is highly unlikely that
he would have been kept in the dark about the Respondent's requirements
for a new sales representative. (Tr. at 77).
25. While testifying that
he was not aware, in November of 1984, that age discrimination
in employment was against the law, Lee Dahl also stated that,
at that time, he had been an equal opportunity employer. (Tr.
at 92). When asked what "equal opportunity employer"
meant to him in November of 1984, he responded "It means
the same then as it does today. I'm an equal opportunity employer
irregardless of age, race, color." (Tr. at 92). These two
statements, taken together, constitute an assertion that, in November
of 1984, Lee Dahl Motors was an equal opportunity employer regardless
of age. (Tr. at 92). That assertion is false. See Findings of
Fact Nos. 3-7, 13-15).
26. When asked if the Complainant's
letters to him of December 3rd and December 6th were part of the
reason for his failure to consider the Complainant for the position
filled by James Triplett, Lee Dahl testified at some points that
they were not part of the reason for his decision and at other
points that he would not hire the Complainant
under any circumstances
because of the letters. (Tr. at 97- 102). On his sworn answers
to interrogatories, Lee Dahl indicated that the Complainant did
not meet the qualifications for the job because of this correspondence.
(C. Ex. C).
27. Dan Dahl testified that,
at the time Complainant Swanson requested an application for the
sales representative position he inquired about the age requirement
and was informed by Dan Dahl that "age would not have any
bearing on who we hired." (Tr. at 119). This testimony is
shown to be false by the testimony of Complainant Swanson, a far
more credible witness, who denied that such a discussion had taken
place. (Tr. at 18, 168). It should be noted that, even if it were
to be believed that Dan Dahl had made this statement, it would
simply constitute an admission that he had lied to Complainant
Swanson at the time he requested an application, for Dan Dahl
was then well aware of the age requirement and the reasons for
it. (Tr. at 118, 123-24, 135-36). This admission would hardly
bolster Dan Dahl's credibility.
28. Dan Dahl also testified
that the Respondent's interest in obtaining an applicant in the
21 to 35 age range was only a "preference" and not a
requirement. (Tr. at 124, 135-36). Given his familiarity with
the advertisement, and the reasons for its age restriction, it
is clear that this statement is false. (Tr. at 118, 136).
29. One of the qualifications
required for the sales representative position was neatness in
appearance. (C. Ex. A). Before being called to testify, Dan Dahl
heard the Complainant testify that he had worn a suit and tie
when he received the application form. (Tr. at 13). When asked
about Complainant Swanson's appearance at the time he obtained
an application, Dan Dahl initially testified that the Complainant
wore black soled shoes, a pair of slacks and an open shirt, but
not any coat or tie. (Tr. at 120). On cross- examination, it was
brought out that Lee Dahl, in his answer to an interrogatory,
had indicated that Dan Dahl did not remember what Complainant
Swanson wore. (C. Ex. C; Tr. at 139-140). In the course of further
cross-examination, Dan Dahl testified that he only remembered
the shoes, had earlier testified that the Complainant wore slacks
and an open shirt because most people do, and that the Complainant
must not have worn something "outstanding," like a suit
and tie, or he would have remembered it. (Tr. at 140- 41). This
testimony indicated a willingness by Dan Dahl to state "facts"
which were not based on his actual knowledge or memory of events,
but which were simply plausible responses to the questions and
were perceived by him as being beneficial to the Respondent's
defense.
30. Complainant Swanson
was a credible witness. His testimony is consistent and reflects
none of the contradictions which typify Lee Dahl's and Dan Dahl's
testimony. His testimony reflects a willingness to admit adverse
facts with candor, without attempting to paper
them over with subsequent
denials or modifications. For example, one issue raised at trial
was whether the Respondent's letter dated December 3, 1984, indicating
that the applicants were to be placed on hold while the economic
climate was assessed, was sent to Complainant Swanson after Lee
Dahl Motors received his letter dated December 3, 1984, the first
correspondence from the Complainant accusing the Respondent of
age discrimination. (R. Ex. 1, 2). If that had been the case,
the Complainant might have argued that the Respondent's December
3,1984 letter was simply a subterfuge for failing to hire him.
(R. Ex. 3). Nonetheless, Complainant Swanson not only testified
that these letters may have crossed in the mail, but also admitted
that he had been informed by Respondent Lee Dahl Motors, prior
to December 3,1984, that the applications were being placed on
hold. (Tr. at 29-31).
31. Although demeanor of
the witnesses has been considered, it was not very helpful in
resolving credibility issues in this case. Lee Dahl gave much
of his testimony with his arms and legs crossed, behavior that
could signify discomfort or tension, but which gives no clue to
the underlying reason for the tension. Complainant Swanson was
nervous at times, but this was the result of the natural tension
of being a witness in a trial and did not indicate anything concerning
his credibility. Jr. at 10, 39). Dan Dahl's behavior while a witness
provided no clues one way or another as to his credibility.
32. Both Complainant Swanson and the Dahls have obvious economic self-interests which must be weighed in assessing their credibility, i.e. the Complainant's interest in receiving back pay and the Dahls' interest in avoiding it. If there had been contradiction or falsehood in Complainant Swanson's testimony, his self-interest might have served to explain it. The economic self-interest of the DahIs does provide an explanation for the falsehood and contradiction present in their testimony and has been taken into account in weighing their credibility.
The Opening Filled By James Triplett:
33. Although it is undisputed
that James Triplett was hired to fill a sales representative position,
several of the contentions of the Respondent concerning the filling
of this position have not been established by the greater weight
of the evidence. First, the contentions that (1 ) the sales position
filled by Mr. Triplett was a new position, which resulted from
the retirement plans of D.V. Wieck; (2) the retirement of D.V.
Wieck resulted in a greater emphasis on auto sales experience
because the new employee would be replacing an experienced salesperson;
and (3) the advertised position was not filled after being placed
on hold, all rely entirely on the testimony of Lee Dahl and Dan
Dahl. (Tr. at 87, 103, 109- 10, 129). Due to their lack of credibility,
and the absence of any supporting credible evidence or other indicia
of reliability, their testimony is entitled to no weight.
34. Furthermore, the Respondent's
December 3, 1984 letter states it is "putting all applicants
on hold" and that it "intends to create another sales
representative position." (R. Ex. 2 (italics added)). These
statements indicate a temporary hiatus in the hiring process,
and not a permanent decision to not fill this sales representative
position. The position was filled within three weeks of the Respondent's
December 3rd letter. See Finding of Fact No. 11. In filling this
position, the Respondent relied on the same applications it had
received in response to the advertisement. (Tr. at 103). Therefore,
these contentions are rejected because they are not supported
by the greater weight of the evidence.
35. The Respondent also
contended that particular qualifications controlled its employment
decisions, i.e. first, that it relied on Complainant Swanson's
lack of automobile sales experience when it rejected him, and,
second that the automobile sales experience and personality of
Mr. Triplett resulted in his being hired. (C. Ex. D). Underlying
the first contention is the premise that the Respondent considered
the Complainant's sales experience in addition to his age and
his opposition to the Respondent's discriminatory practices at
the time it considered him for the sales representative position.
The only evidence indicating that the Respondent did so are the
statements of Lee Dahl and Dan Dahl, which are so lacking in credibility
as to be entitled to no weight. Therefore, the first contention
is not supported by the greater weight of the evidence.
36. Given that Mr. Triplett
fell within the preferred age range, his sales experience and
personality undoubtedly did play a part in the Respondent's decision
to hire him. In addition to his age, Mr. Triplett's application
indicated that he had been a car sales representative since April
of 1982, a total of two and one-half years. (C. Ex. C). His cover
letter indicated that he had ranked 5th out of 15 salespersons
in unit sales in 1983, had been named "Salesman of the Month"
twice since his employment, and had won three sales competitions,
two at the dealership level, and one at the district level. (C.
Ex. C).
37. After the December 3rd
letter was sent out, Lee Dahl had met James Triplett at an open
house for car dealers sponsored by Clinton Federal Savings and
Loan. (Tr. at 86). Lee Dahl found him to be personable, intelligent,
and neat appearing. (Tr. at 87).
38. The Complainant's application
indicated that his sales experience consisted of selling aircraft
while employed as a commercial pilot between April of 1972 and
February of 1975. (R. Ex. 4). Lee Dahl never met the complainant
and had no opportunity to judge his personality. (Cp. Ex. C; Tr.
at 11, 17).
39. Although a comparison of qualifications demonstrates that the Respondent would have been justified in selecting James Triplett over the Complainant, there is no credible evidence to show that, at the time Complainant Swanson was rejected, the Respondent did, in fact, either rely on his sales experience or a comparison of his sales experience to that of James Triplett in making its decision to reject him.
Compensation:
40. The only evidence introduced
concerning the dollar value of compensation provided to sales
representatives was evidence of the compensation provided to the
preferred candidate, James Triplett, during his employment with
the Respondent from January 25, 1985 to October 1, 1986. (R. Ex.
6, C. Ex. C; Tr. at 92). During his employment he received a total
of forty-seven thousand two hundred ninety- three dollars and
ninety-two cents ($47,293.92) in the form of "all monies
paid to him by Respondent for wages or commissions from date of
hire to date of termination ... together with the dollar value
of all employer paid for or provided benefits including but not
limited to health insurance, retirement benefits, automobiles,
bonuses and profit sharing." (C. Ex. C; Tr. at 92). The Complainant,
on brief, has conceded that this amount would constitute a full
remedy for those items of compensation. (Complainant's "Closing
Argument" at 5).
41. There is no evidence in the record to indicate that Complainant Swanson received any earnings from employment or unemployment compensation from January 25, 1985 to October 1, 1986.
Emotional Distress:
42. Complainant Swanson
applied, on November 12, 1984, knowing that he would probably
be rejected due to his age. (C. Ex. A; R. Ex. 4). It may reasonably
be inferred that the knowledge that one is probably subjecting
oneself to "the humiliation of explicit and certain rejection"
will, in itself, result in some emotional distress. Teamsters
v. United States, 431 U.S. 324, 365, 97 S. Ct. 1843, 52 L.
Ed. 2d 396, 434 (1977). At the time he wrote his letter of December
3, 1984, Complainant Swanson was upset and angry because he believed,
correctly, based on the advertisement, that he would not be hired
or even seriously considered for the sales representative position
due to his age. (C. Ex. A; R. Ex. 1; Tr. at 31). His letter of
December 6th also indicates such distress. (R. Ex. 3). After he
learned, through an advertisement, that Mr. Triplett had been
hired for the position, he became "quite despondent"
because of the age discrimination he had experienced. (Tr.
at 23-24). This would have occurred sometime after Mr. Triplett
began his employment on January 25, 1989. (R. Ex. 6). There is
no evidence in the record showing how long Complainant Swanson's
despondency continued after he learned of his rejection.
43. From the above facts, it may be reasonably concluded that Complainant Swanson suffered mild to moderate emotional distress for a period of at least three months. Given the severity and duration of the emotional distress shown by the record, the Commission concludes that an award of two thousand five hundred dollars ($2,500.00) is full, reasonable, and appropriate compensation for his loss.