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On Oct. 26, 2001, in state court in Cleveland, a unanimous jury returned a verdict in favor of Russell Rich against McDonald’s Corp. for $5 million for constructive wrongful discharge in violation of Ohio’s policy forbidding discrimination against people with a disability. After an award-winning 21-year career at McDonald’s franchise restaurants, Russell Rich sought career advancement at McDonald’s corporate level in the Cleveland region. He began employment on July 1, 1997, and four months later found himself forced out the door after his employer discovered he had AIDS. I believe my keys to victory were the jury voir dire, an evidentiary time line I established through testimony, and the first-person technique that highlighted missing documents that I used in final argument. In voir dire, I used a Gerry Spence technique, “I’ll show you mine, you show me yours,” and shared my fears that the jury might think McDonald’s had acted properly to remove a person with AIDS from food preparation. I told them I had feared eating with Rich until I learned AIDS is not spread through food. I eliminated from the panel a defense attorney and a fundamentalist minister who said he thought that homosexual people were condemned to Hell. At trial, because we had no smoking gun, I established a time line through the evidence that showed there was, in my opinion, a pattern of discrimination that added up to the illegal act of wrongful discriminatory discharge. As is my custom, the first witness I called was an adverse witness. Linda Vance, Rich’s general manager at McDonald’s, testified she visited him in the hospital, saw a quarantine sign and then talked to the McDonald’s human resources department about her concern that he had a communicable disease. McDonald’s human resource supervisor Odell Jones testified that he reacted by forcing Rich to sign an authorization allowing McDonald’s to obtain his medical diagnosis as a condition of his employment. Vance had also testified that she wouldn’t let Rich schedule the staff or order supplies because her boss, operations manager Patty Hammons, had so directed. Hammons’ testimony at trial was notable for her stated lack of any memory about Rich, yet she was the official responsible for all the decisions that affected him. Human resources supervisor Jones testified that he thought Rich had AIDS because of the medications he was on. Rich’s treating physician testified that Rich had complained to her about having to work excessive hours — between 70 and 108 per week. And while there was considerable disagreement between plaintiff and defense witnesses about what was said at a final meeting between Rich and McDonald’s managers, Rich testified that he was told he would spend the rest of his career selling hamburgers over the counter (where all the food was already wrapped). On cross-examination, I asked Patty Hammons, McDonald’s operations manager, if being asked to do something for the rest of one’s career sounded permanent, and she testified that she didn’t know how long one’s career was. My last question “If they have a fatal disease, it might be a short career, right?” — went unanswered. The look on her blank face, in my view, explains the verdict. In closing argument, I used another Spence technique: the first-person voice. I became the missing documents by saying, “I am the August manager’s schedule.” I crouched before the jury. “I’m all crumpled up, instead of in my file. How come they didn’t bring me to the courtroom? I’m all covered with whiteout and crisscrosses. What would I tell the jury they don’t want me to say?” and “I’m the McDonald’s memo on AIDS. They brought hundreds of my cousins to trial, but not me! … Are they afraid I would say AIDS is a disability covered by the ADA?” The trial judge ruled that the issue of punitive damages could not go to the jury. The jury gave Rich exactly the amount I requested. The defendant is appealing the verdict. Meanwhile, Rich’s new license plates say, “MCVRDCT.” Paige Martin, a solo practitioner in Columbus, Ohio, represented Russell Rich in his suit against McDonald’s Corp.

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