PITTSBURGH – Giant Eagle is seeking to dismiss a consolidated lawsuit filed against it by plaintiffs who objected to wearing a mask in its stores during the coronavirus pandemic, believing they have failed to state a claim.
Kimberly Pletcher filed suit in the U.S. District Court for the Western District of Pennsylvania on May 26 versus Giant Eagle, Inc. After Pletcher’s complaint was consolidated with those of 34 other plaintiffs, two other amended complaints were filed on June 29 and Aug. 21.
The plaintiffs had brought similar lawsuits against the Giant Eagle grocery store chain for its mandatory mask-wearing policy, one which is currently not in place in the nearby states of Ohio, Indiana and West Virginia, and which plaintiff counsel called “illegal and unjustifiable” and violating the Americans with Disabilities Act.
Subsequent to consolidation, the suit seeks a preliminary injunction that prohibits Giant Eagle from excluding customers with disabilities that prevent them from wearing masks to shop at Giant Eagle stores in the same manner as non-disabled customers, and for the store to permit those who physically cannot wear masks to shop inside its stores, according to state guidelines from Dr. Rachel Levine of the Commonwealth’s Department of Health.
Giant Eagle responded with a motion to dismiss the consolidated case on Sept. 2, for failure to state a claim – and commenting that the case “seeks to impose disproportionate risk on those most susceptible to serious consequences from the virus, including the elderly, the immunocompromised, and of course, individuals with a disability.”
“Plaintiffs’ claims fail for three reasons. First, the ADA permits legitimate safety requirements – such as Giant Eagle’s neutral face-covering policy – even if the requirement screens out individuals with disabilities. Second, the ADA does not require Giant Eagle to abandon its Policy in the face of a direct threat to the health and safety of its customers and team members,” the dismissal motion read, in part.
“Third, plaintiffs do not state a claim under the ADA because their proposed modification – allowing them to shop in stores without any face covering – is neither reasonable nor necessary. In fact, Giant Eagle already reasonably accommodates customers who cannot or will not wear masks by allowing them to wear face shields and offering curbside and home delivery services.”
The defense said Giant Eagle’s policy “sets forth a neutral and legal rule required for the safe operation of Giant Eagle’s stores during the current COVID-19 pandemic.”
“Plaintiffs make no allegation that the spread of COVID-19 presents no actual risk to the health of others, no allegation that face coverings do not help reduce the risk, and no allegation that Giant Eagle’s policy is based on speculation, stereotypes, or generalizations about individuals with disabilities. Nor could they reasonably do so,” the motion read.
“Because Giant Eagle’s policy is a neutral rule based on actual risks, the ADA does not provide plaintiffs with a vehicle for challenging it, even if the policy may exclude some on the basis of a disability. The Court should dismiss plaintiffs’ ADA claims for that reason alone.”
The store said that “expert guidance dictates that wearing face coverings is one of the most effective measures we can take to reduce the spread of COVID-19, particularly in confined spaces, like grocery stores” and that any request to modify that advice or policy was both unreasonable and unnecessary.
“No reasonable juror could determine that allowing any customer who claims a disability to shop without a face covering poses no heightened risk to the health and safety of others. Hence, plaintiffs’ ADA claims fail as a matter of law.”
Nor, the defense says, did the plaintiffs allege plausible claims of retaliation and coercion on the part of the store.
“Plaintiffs do not allege any facts in support of their claim that Giant Eagle retaliated against them for engaging in a protected activity under the ADA. Rather, plaintiffs allege that Giant Eagle called the police or ‘yelled’ at a few of the plaintiffs for trying to enter its stores without wearing a face covering,” the dismissal motion stated.
“Even if the ADA protects their ability to flout Giant Eagle’s policy (and it does not), plaintiffs do not allege a real and immediate threat of future retaliation for protected activities under the ADA.”
The plaintiffs are represented by Thomas B. Anderson of Thomson Rhodes & Cowie, in Pittsburgh.
The defendants are represented by Jeremy D. Engle and Jonathan D. Marcus of Marcus & Shapira, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00754
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com