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).

 

 


[A]t that time, in 1984, we had four salesmen, and three of the salesmen were middle-aged, 50 and older.

Q. Yes

 

...


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:

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.

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