PITTSBURGH – Defense counsel for Giant Eagle grocery stores are seeking sanctions to be levied against several plaintiffs claiming their disabilities prevent them from wearing face coverings in stores during the coronavirus pandemic, claiming they’ve evaded proper discovery procedures and engaged in misconduct.
Kimberly Pletcher first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 26, 2020 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, 2020 and Aug. 21, 2020.
The plaintiffs had brought similar lawsuits against the Giant Eagle grocery store chain for its mandatory mask-wearing policy, which plaintiff counsel called “illegal and unjustifiable” and violating the Americans with Disabilities Act.
Subsequent to consolidation, the suit sought 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, now-former Secretary of the Commonwealth’s Department of Health.
Giant Eagle responded with a motion to dismiss the consolidated case on Sept. 2, 2020 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
Nearly one year later, counsel for the defendants filed a motion for sanctions on Aug. 4, arguing that multiple plaintiffs have engaged in misconduct by not complying with prescribed discovery procedures.
“Plaintiffs have generally failed to provide complete, non-evasive discovery, but eight of those plaintiffs have engaged in misconduct that defendants believe warrant sanctions. Those eight plaintiffs repeatedly withheld relevant documents, spoliated evidence, and provided evasive or false discovery responses, all in defiance of the Court’s orders. The misconduct involved a central issue to the case – namely, these plaintiffs’ claimed inability to wear face coverings,” the sanctions motion stated.
According to the defense, the plaintiffs in question are: Debbie Vidovich, Doug Janaszek, Nicholas Conley, Paul Shepherd, Holly Pulling, Josiah Kostek, Clyde Piovesan and Tommy Wynkoop, whose claims it feels should be dismissed.
“The Court long ago ordered plaintiffs who are unwilling to provide complete discovery to dismiss their claims with prejudice. The above plaintiffs ignored the Court’s directive, providing only the discovery they wanted to provide and hiding or destroying the rest. Such conduct should be deterred.”
Defense counsel believes sanctions are warranted in this instance.
“These plaintiffs have treated discovery like a game of hide-the-ball rather than the open process it is designed to be. While every plaintiff who has failed to provide non-evasive, complete discovery could have their claims dismissed pursuant to the Court’s amended case management order Giant Eagle at this time seeks the sanction of dismissal against just eight plaintiffs – plaintiffs who have demonstrated an apparent disregard for the rules and truth,” the sanctions motion stated.
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