PITTSBURGH – An amended motion for preliminary injunction from a man who claims his disability prevents him from wearing face coverings in Giant Eagle grocery stores during the coronavirus pandemic without experiencing severe anxiety has been thrown out.
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.
One of those plaintiffs is the litigant at issue, Josiah Kostek.
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
Kostek claimed that he “cannot wear masks or cloth face coverings without experiencing severe anxiety and difficulty breathing”, and seeks a preliminary injunction declaring Giant Eagle’s policy as well as its Oil City store’s decision to ban him after he attempted to shop without a mask or other face covering on May 16, 2020 and May 27, 2020 to be in violation of the ADA.
Kostek was arrested following the May 16 incident and ultimately found guilty of the summary offense of disorderly conduct-unreasonable noise. He filmed the May 27 episode on a smartphone and although police arrived on the scene, he was not arrested and left on his own.
Giant Eagle countered that Kostek “failed to present sufficient evidence to substantiate his claims that he has a disability which precludes him from complying with its policy and that its well-supported defenses otherwise operate to defeat his claims.”
Despite declarations from the parties, orders from the Secretary of the Department of Health, Giant Eagle’s policies, Kostek’s medical records, Facebook posts, state court records and the video recording of his second visit to the Oil City Giant Eagle, U.S. District Court for Middle District of Pennsylvania Judge Nora Barry Fischer dismissed Kostek’s amended motion for a preliminary injunction.
“In this Court’s estimation, the uncontested evidence of record demonstrates that Kostek is not likely to succeed on the merits of his claims against Giant Eagle under Title III of the ADA, nor is he able to establish any of the other prerequisites necessary to secure a preliminary injunction such that his motion will be denied without a hearing,” Fischer said.
“As to the merits of Kostek’s claims against Giant Eagle, he has not presented a colorable factual basis showing that he has a disability preventing him from complying with Giant Eagle’s face covering policy that permits customers to shop inside its stores while wearing masks or full-face shields. Kostek also does not contest that Secretary Levine’s orders both state that face shields may be worn in lieu of masks and that the Secretary further recommends that individuals with disabilities wear a face shield if a mask cannot be worn.”
Fischer added Kostek has “neither alleged nor presented any evidence that he is unable to wear a full-face shield due to a disability” and “the record is devoid of any evidence that a medical professional has opined that he cannot wear a mask.”
“Further, Kostek’s statements in his declaration and the medical records are undermined by the numerous inconsistent statements he made in social media posts and on the video wherein he says that he is able to wear a mask but merely believes he has a right to refuse to comply with mask policies,” Fischer said.
“Overall, Kostek has failed to marshal sufficient evidence to prove that Giant Eagle’s face covering policy discriminates against him due to his disabilities and therefore, he is not likely to succeed on the merits on his ADA claims.”
Fischer concluded that “given Kostek’s inability to present sufficient evidence supporting a prima facie case of discrimination, the Court need not evaluate Giant Eagle’s well-taken defenses that its face covering policy is a legitimate safety requirement during the COVID-19 pandemic”, and that “Kostek presented a direct threat to the health and safety of others, including customers and employees.”
Fischer then dismissed the amended injunction motion.
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