by Jonathan Ringel, Fulton County Daily Report, 8/25/1999
"While channel surfing last week, Duluth attorney Stephen P. Fuller came upon an omen on the legal comedy 'Ally McBeal.'
In a discrimination case handled by the title character's firm, the jury awarded the plaintiff $1.2 million in damages.
Fuller, representing a local Applebee's franchisee in the midst of its own federal discrimination trial, thought, "Oh, s--; that's what they're going to do" in his case.
Actually, it was worse. On Friday, a four-man, four-woman jury took three hours to conclude Fuller's clients must pay $1.826 million in damages for demoting an employee because she was pregnant. Rau v. Apple-Rio Management Company Inc., No. 1:97-cv-2345-WBH (N.D.Ga. Aug. 20, 1999).
Fuller sounds unworried that his client, Apple-Rio Management Co. and other related entities, will have to pay the former restaurant manager a seven-figure sum. Instead, he says he expects U.S. Magistrate Judge Gerrilyn G. Brill will reduce the award to $334,000-the $300,000 limit on compensatory and punitive damages required by federal law, plus $34,000 in back pay found by the jury.
The plaintiff's lawyer, Nancy E. Rafuse of the local office of Paul, Hastings, Janofsky & Walker, agrees that the law limits compensatory and punitive damages to $300,000.
But, she adds, "we're going to be over a million dollars before this is all over."
That total includes attorney's fees from the two-year-old case and $325,000 in back pay, front pay and interest-all to be decided by Brill, says Rafuse.
Rau's lawyer also says her client's claims that she was forced out of her job have yet to be litigated. This "constructive discharge" claim could bring a similar award, Rafuse says, especially since a jury has already found for her client on discrimination and retaliation claims.
Rafuse's client is Janet M. Rau, who says in 1996 she was demoted from her job as general manager of a local Applebee's restaurant because she was pregnant.
According to Rau's pre-trial summary of the facts, her problems began soon after she informed her co-workers, including her bosses, that she and her husband were planning to start a family.
One of her superiors, Stan Klaus, allegedly told another restaurant manager, "Talk to Janet about this baby thing and talk her out of it."
A few months later, Rau was pregnant and a doctor ordered her not to work because of a pregnancy-related complication.
The doctor cleared Rau to return to work a week later, but she was demoted two months later.
Rau's immediate boss, Steve Smith, says in court briefs that she was demoted to a second assistant manager at another restaurant because her restaurant was underperforming. But Rau claims her restaurant's performance was consistently the highest or second-highest in her five-restaurant district.
The day after Rau was demoted, she claims, Smith told another employee, 'Janet will realize this was the best thing for her right now during her pregnancy and the problems with her pregnancy.'
Fuller says that statement was denied by Smith and the employee.
Rau claims her attempts to compare her restaurant's financial results with others in her district resulted in a call from Fuller, who regularly represents the companies.
'Fuller was aware at the time of this contact that Ms. Rau was represented by counsel,' Rau's brief reads, 'but, nonetheless, improperly proceeded to question Ms. Rau about her demotion.'
Fuller calls that statement 'an absolute lie.'
He says he was asked to look into Rau's attempts to see other restaurants' financial data but 'nobody knew she was represented by counsel' at the time.
Fuller says Rau told him she wanted to compare her restaurant's data with those of others in hopes of understanding her demotion.
Fuller adds that he told his clients they should explain in writing why Rau had been demoted but before any letter could be sent, Rau had retained a lawyer and sent a demand letter.
Neither side will confirm Rau's original demand but Rafuse says it included 'an absurdly low offer' to settle.
Fuller says he understands how the jury could have found against his client: 'You're dealing with a woman who was demoted while pregnant. That's a good plaintiff.'
But he adds that Rau was demoted because of her restaurant's financial performance. In that same time, he adds, two other pregnant employees were not demoted.
Rafuse and Paul, Hastings partner William B. Hill Jr. represented Rau at the eight-day trial.
The Applebee's franchisees were represented by Paul Oliver of Wimberly & Lawson, says Fuller, while he assisted. Oliver could not be reached to discuss the case."