A former restaurant manager, who claimed that he was forced to resign after his employer learned that he has HIV, has won a jury verdict of $5 million from a state court jury in Ohio. Pending posttrial motions may reduce, enhance or obliterate the jury award.

Russell Rich was working as a manager at a franchisee McDonald's restaurant location when, in 1997, he left to take a similar job working directly for the McDonald's corporation at a different store location. When the McDonald's corporation hired Rich in July 1997, it assigned him to a restaurant location with the worst possible rating in order to take advantage of his management skills, said Paige A. Martin, his attorney. But things soured quickly after Rich was hospitalized within two weeks of the start of his employment. During that four-day period of hospitalization, Martin said, the corporate store's general manager visited Rich in the hospital and apparently learned of his HIV-positive status.

Five days after Rich returned to work, Martin continued, he was informed by human resources personnel that he needed to sign a form authorizing the release of his medical records. Although the employer maintained that it was only attempting to ensure Rich was not infectious, Rich had already tendered a doctor's slip from an infectious disease specialist, which indicated his fitness to return to work.

Martin painted a picture of a hostile work environment that came to exist upon Rich's return to work following the hospitalization. Rich's general manager began to micromanage him, she said, denying him permission to set staff schedules or order supplies. The harassment culminated in late September 1997, she added, when the employer allegedly told Rich that "he would be selling hamburgers for the rest of his career." Shortly thereafter, Rich resigned.

No federal claims

In October 1998, Martin filed suit in an Ohio state court, alleging violations of state law only. Martin deliberately avoided reliance on any federal cause of action such as the ADA, saying that she much preferred to keep the case in state court. She cited the damages caps applicable to ADA employment claims as one reason for doing so. In addition, she said, federal courts hesitate to "recognize a constitutional violation."

Although the trial judge directed a verdict against her on the issue of punitive damages, the eight-person jury nonetheless returned its $5 million verdict against the employer. The entire amount is designated as compensatory damages, Martin noted.

"I think the jury recognized that my client had identified completely with McDonald's," said Martin, who added that the 37-year-old Rich had worked at McDonald's since the age of 13. "They tore his world to smithereens."

Martin said she has filed a motion for pre-judgment interest, which could add more than $2 million to the verdict. But she is also facing pending defense motions for new trial, remittitur and judgment notwithstanding the verdict.

Aubrey B. Willacy, of Cleveland's Willacy, LoPresti & Marcovy, is representing the defendant. He seemed confident that the verdict will be reduced if not eliminated. "We filed our motions," Willacy said. "I believe that the motions are well taken in point of fact and law."