July 15, 2005

Manager with HIV gets $490,000 in McDonald's bias case

by Eric Resnick

Cleveland--A second jury has unanimously found that McDonald�s discriminated against a gay former manager with AIDS and forced him out of his job.

The jury awarded $490,000 to Russell Rich of Akron on June 7, after a day and a half of deliberation.

This was the second trial in the case. Another jury in 2001 awarded Rich $5 million based on the cost of medication for the rest of his life. McDonald�s appealed that verdict, saying they didn�t get a fair trial.

The Eighth Ohio District Court of Appeals agreed and ordered the new trial, which began June 20 before Judge John T. Patton.

Rich�s attorney Paige Martin says she will appeal the lower award, saying the judge was biased and made errors. McDonald�s is also considering another appeal, questioning the jury�s findings.

To date, the fast food chain has paid Rich nothing.

Starting at age 13, Rich worked 21 years for several northern Ohio McDonald�s franchises, eventually becoming a manager of company-owned stores in Minerva and Lodi. When the company discovered he had AIDS in 1997, the jury found, they forced him out of his job.

�McDonald�s has a long-standing zero tolerance policy prohibiting discrimination in the workplace. We neither condone or tolerate discrimination in our restaurants,� said company spokesperson William Whitman in a written statement. �As we have stated from the beginning of this case, Mr. Rich�s allegations are baseless and without merit.�

Whitman did not return calls for further comment or follow-up questions.

McDonald�s appeal in the first trial was based on the judge�s rejection of 44 pages of questions for the jury, after the company submitted them late and outside the protocol established by the judge.

The jury in the new trial based its verdict on answers to nine questions proposed by McDonald�s and eventually agreed to by Martin, although she criticized them.

They found for Rich on seven of the nine, saying that McDonald�s made Rich�s working conditions so intolerable that he was forced to quit; that they had shown no legitimate reason for doing this; that they did it because he had AIDS; that Rich had proved that the reasons McDonald�s gave were a pretext for AIDS discrimination; and that the company regarded him as �as having an impairment that substantially limited a major life activity from July 1, 1997 through October 16, 1997.�

The last item means they knew the federal Americans with Disabilities Act applied, which prohibits AIDS discrimination. The dates are the time Rich worked for corporate McDonald�s. Before then, he was a manager at franchise stores.

The jury found for McDonald�s on two items, saying that Rich wasn�t entitled to monetary damages from 1997 to the time of the trial, and that a 1998 job at Applebee�s was reason to reduce his award by $10,000.

Question nine asked, �Do you find from preponderance of the evidence that Mr. Rich should be awarded damages to compensate for emotional pain, mental anguish, inconvenience, and loss of enjoyment of life?� The jury answered, �Yes,� and determined that amount to be $490,000.

Unless they had read news accounts, the jurors were unaware of the earlier $5 million verdict. Immediately after the proceedings, jurors refused to comment.

Martin said Judge Patton�s instructions to the jury and his behavior on the bench contributed to the disparity between the awards.

�McDonald�s got a new trial because of what the first judge did,� said Martin, adding that she sees no reason why Rich shouldn�t, too.

Patton refused to allow the jury to consider punitive damages against McDonald�s, even though Martin proved that they lied to the court by failing to produce critical documents during discovery.

Patton was also noticeably more favorable to McDonald�s witnesses on the stand, allowing them to regale the jury with long statements that diverted the jury�s attention from the questions asked.

Rich�s witnesses, by contrast, were interrupted by the judge repeatedly as they testified.

The jury saw Patton interrupt Rich nearly a dozen times as he testified. The most common of these was the judge�s assertion that Rich�s statement was hearsay.

Patton stopped Rich in mid-sentence even when he was testifying about conversations he participated in. �Hearsay� is defined as �a rumor or second-hand report.�

Patton, a Democrat, retired in 2000 as the longest-sitting Ohio appellate judge, 24 years. He served nine years on the Cuyahoga County Common Pleas bench before then.

He sat on Rich�s case by designation when Judge Ronald Suster decided not to hear it, three days before the trial began.

Patton is beyond the mandatory retirement age for Ohio judges, which is 70. He wears a hearing aid and is hard of hearing to the point of stopping proceedings to ask for things to be repeated.

During Rich�s testimony on June 30, the ninth day of the trial, McDonald�s attorneys objected to him sitting and talking with his attorneys during a break.

They made a motion to bar Rich from talking to his own counsel, and Patton granted it.

Martin called that �outrageous,� and intends to use it as an example of Patton�s bias against Rich.

Patton also denied this reporter access to the case�s pleadings and records during most of the trial.

A federal suit claiming the judge denied the public�s First Amendment right to them was filed against Patton by this reporter on July 5. That litigation is still pending.

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