McDonald’s Loses AIDS Bias Case

Gay former manager with HIV gets $490,000, down from original $5 million award

A second jury in Cleveland 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, 42, of Akron, Ohio on July 7, after a day and a half of deliberation.

This was the second trial in the case. Another jury in 2001 unanimously awarded Rich $5 million, after four hours of deliberation, based on the cost of medication for the rest of his life. McDonald’s appealed that verdict, saying the company didn’t get a fair trial.

The Eighth Ohio District Court of Appeals agreed and ordered the new trial, which began June 20 before John T. Patton, a retired judge designated to hear the case.

Rich’s attorney Paige Martin said she will appeal the lower award, charging that the judge was biased and made errors. McDonald’s is also considering another appeal, to challenge the jury’s finding of guilt.

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 spokesman 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.”

In testimony at trial, McDonald’s said Rich had quit of his own accord.

Whitman did not respond to calls seeking additional comment.

The basis of McDonald’s appeal in the first trial was the fact that the original judge rejected 44 pages of questions for the jury that the company submitted for the judge’s consideration. The judge ruled that the submission was late and was not completed according to required protocol.

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

The jury found for Rich on seven of the nine issues, saying that McDonald’s made Rich’s working conditions so intolerable that he was forced to quit; that the company had shown no legitimate reason for doing this; that it did so 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.”

That last finding indicated that the company knew Rich was covered by the federal Americans with Disabilities Act, which prohibits AIDS discrimination. The dates are the time Rich worked in McDonald’s corporate offices.

The jury found for McDonald’s on two items, saying that Rich wasn’t entitled to monetary damages from 1997 until the time of the trial, and that his award should be reduced by $10,000 because he had a job at an Applebee’s franchise in 1998.

The award of $490,000 was compensation for “emotional pain, mental anguish, inconvenience and loss of enjoyment of life.”

Information about the original $5 million award was not entered into evidence.

During testimony about the appropriate size of an award, Cleveland economist John F. Burke, Jr., told the jury that it would take $4.8 million payment today to be invested conservatively so that the $135,000 cost of Rich’s medication adjusted for inflation could be withdrawn every year for the rest of his expected lifespan to age 71. Michael Gray, an attorney with Jones Day, which represented McDonald’s, cross-examined Burke, nearly shouting at him.

“He has AIDS. He’s not going to live that long,” Gray said.

“That’s the average lifespan of a white male currently 42,” Burke responded, “and people with AIDS are counted in that group.”

Immediately after the proceedings, jurors refused to comment.

Martin charged that 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 the company 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, having served 24 years. He served nine years on the Cuyahoga County Common Pleas bench before then. He was designated to sit on Rich’s case after Judge Ronald Suster decided not to hear it, three days before the trial began.

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.

Eric Resnick is a staff writer for the Gay People’s Chronicle in Ohio.

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