June 10, 2005

McDonald's hid evidence, says the man they fired for HIV

Newly-discovered company handbooks show
they knew it was illegal all along

by Eric Resnick

Cleveland--An Akron man who was fired by McDonald�s for having AIDS says the burger chain concealed evidence and should pay him $5 million they owe him instead of getting a new trial.

Russell Rich, 41, was awarded the money in 2001, after a jury found that McDonald�s had wrongly forced the 20-year employee out of his job as manager of several Norteast Ohio stores.

McDonald�s appealed the verdict, claiming that although AIDS is included in the Americans with Disabilities Act, Rich is not disabled.

The company relied on a 1998 U.S. Supreme Court ruling that a woman was covered by ADA because her HIV status made her unable to reproduce. They said that since Rich is a gay man, he isn�t going to reproduce anyway, so he has no claim under ADA.

The Eighth Ohio District Court of Appeals in Cleveland agreed in 2003, set aside the $5 million award and gave McDonald�s a new trial.

That trial is set to begin June 20 before Cuyahoga County Common Pleas Judge Ronald Suster.

Rich now says that McDonald�s concealed three of their own employee manuals that clearly say that he is covered by ADA and it was illegal to force him out. The manuals were in a box of other documents the company sent to his attorney, Paige Martin of Columbus, last month.

Martin called them �the smoking gun,� and says McDonald�s punishment for hiding them should be reinstatement of the $5 million verdict plus interest since 2001 along with some costs related to the new trial.

Martin said the documents are company handbooks from 1992 and 1996 titled, �Everything You Wanted to Know About the Americans With Disabilities Act� and an internal policy memo titled �What You Need to Know About the Americans with Disabilites Act.�

All three say, �A person with AIDS or who is HIV-positive is considered to be disabled under the law.�

The 1992 edition also says, �Since AIDS is not transmitted through food handling, you cannot legally exclude someone with AIDS from a job.�

�Has McDonald�s been a big target under this law?� asks the 1996 edition. It answers, �The good news is that we have been generally recognized as one of the leaders in employing the disabled and in making our restaurants accessible.�

Before the original trial, McDonald�s had agreed to �produce, without objection, a copy of the �handbook [and] company policy manual� in effect during [Rich�s] employment which set forth the policies regarding �discrimination in the workplace�.�

But the company didn�t do that.

�McDonald�s supplied hundreds of pages of �policy� documents, but none of these documents contained any information about the company�s policies about discrimination based on disability, or had any reference to the Americans with Disabilities Act,� says Rich�s latest motion to restore the $5 million verdict and end the case.

According to Rich�s sworn statement, McDonald�s attorney Brett Rawitz told Martin and him in 2001 that he had personally searched everywhere for the HIV policy but could not find it.

Though the basic premise of the manuals was confirmed by testimony at the original trial by McDonald�s operations consultant John Koons and human resources supervisor Odell Jones, the company mocked Rich and Martin for not being able to produce the actual documents.

In April, during the legal maneuvering leading up to the new trial, McDonald�s tried to have the case dismissed, saying the documents were �legally insufficient.� They also repeated their argument that HIV has not limited Rich�s ability to reproduce, since he is gay.

After that, Martin filed another motion for the production of documents, which led to a delivery on May 23.

�They sent over a big box,� said Martin, �and there they were, inside.�

�McDonald�s behavior in failing to produce the corporate policy . . . is outrageous conduct which demonstrates a contemptuous attitude towards the authority of this court,� wrote Martin.

�The documents which [McDonald�s] has finally disgorged prove beyond any question that McDonald�s regarded Mr. Rich as disabled, as a matter of corporate policy,� wrote Martin.

McDonald�s new lead attorney, Johanna Fabrizio Parker of Jones Day of Cleveland, did not respond to numerous calls for comment.

Neither did McDonald�s corporate spokesperson Bill Whitman. In the past, he has repeatedly said that McDonald�s wasn�t allowed the chance to present all the evidence at the nine-day trial. He told the Gay People�s Chronicle, �Once the facts are presented in court, McDonald�s will be victorious.�

�McDonald�s has tried to bury Mr. Rich,� argued Martin, �hoping that he would not survive the lengthy appeals process, nor a retrial of this case. Fortunately, he has been able to secure his HIV medications, and thus has lived to witness the injustice, and the callous disrespect for the court system which this company has heaped upon this case.�

McDonald�s has not yet responded to the motion, nor has Suster ruled on it.

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