PITTSBURGH – While plaintiffs who objected to wearing a mask in Giant Eagle grocery stores during the coronavirus pandemic are objecting to the supermarket chain’s attempts to dismiss a consolidated lawsuit filed against it, the store counters that the plaintiffs “cannot justify claims that seek to make its supermarkets less safe.”
Kimberly Pletcher first 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.”
UPDATE
The plaintiffs filed a reply brief to the dismissal motion on Sept. 8, saying they have plausibly alleged claims against the supermarket in their refusal to modify their mask policy.
“Defendants cannot use the virulence of the novel coronavirus in and of itself as a basis to refuse to modify their zero-medical (disability) exception mask policy. The Pennsylvania Health Department has clearly and repeatedly recognized the need for disabled people and those with health conditions that prevent them from wearing a mask to be exempt from mask mandates,” the brief stated.
“As the COVID-19 numbers increased in Pennsylvania, so did the exceptions set forth in the Secretary’s orders. Additionally, Giant Eagle had no mask policy in neighboring states. It is simply ludicrous for defendants to argue that asking them to make an accommodation to their zero-disability exception policy is unreasonable or unnecessary when Giant Eagle allowed customers in neighboring states to do exactly what plaintiffs requested in Pennsylvania.”
In response, Giant Eagle filed its own reply brief to the dismissal motion on Sept. 16.
“Plaintiffs cannot justify claims that seek to make Giant Eagle supermarkets less safe. The opposition to the motion to dismiss fails to effectively address fatal flaws in their complaint, and it tries to duck Giant Eagle’s primary argument altogether. The Americans with Disabilities Act permits neutrally-applied policies that protect the health and safety of customers and employees, even if the policy excludes individuals with disabilities,” counsel for the store said.
“Giant Eagle’s policy does not even actually exclude plaintiffs. At most, plaintiffs allege purported inconvenience for the sake of protecting the lives of thousands of others and slowing the spread of COVID-19. Plaintiffs do not and cannot counter this argument.”
The supermarket argues the plaintiffs’ claims are based on false pretenses.
“The issue is not, as plaintiffs contend, whether Giant Eagle can require individuals with a disability to wear a face covering. Giant Eagle does not seek to do that. The issue is whether Giant Eagle can require anyone entering its stores to wear a face covering. It can. Contrary to plaintiffs’ assertions, no government entity currently mandates, or even recommends, that businesses allow customers to enter their stores without wearing a face covering,” per the brief.
“The CDC and Pennsylvania Department of Health merely advise that anyone who cannot wear a face mask because of a medical condition should not wear one. That is far from a recommendation that people should circulate in public places without a face covering.”
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