PITTSBURGH – For the second time, defense counsel for Giant Eagle grocery stores is 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.”
Nearly one year later, counsel for the defendants filed a first motion for sanctions on Aug. 4, 2021, 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 first sanctions motion stated.
UPDATE
On April 13, came a second motion for sanctions from the defense on similar grounds.
“Pursuant to Federal Rule of Civil Procedure 37, defendants move for an order sanctioning 12 recently deposed plaintiffs. These plaintiffs have acknowledged that they either failed to search for and preserve responsive materials, failed to timely produce significant responsive materials, withheld information about wearing face coverings for significant periods of time (on flights or to shop at Giant Eagle), or all three of these things. One of the plaintiffs purposefully destroyed his phone days before a third-party vendor could collect the data from it. The Court already sanctioned two plaintiffs for this kind of misconduct,” the motion stated.
“Plaintiffs devoted much of their recent filing on the issue of jurisdiction to staking out an untenable position: They appear to say that an earlier Court order absolves them of any responsibility for discovery misconduct. In fact, the Court merely adopted the Special Master’s recommendation to give Giant Eagle the option to forensically search plaintiffs’ phones at its own expense. The Court never relieved plaintiffs of their discovery obligations or said that they should not be held accountable for yet unknown discovery misconduct. In issuing her recommendation, the Special Master took the majority of plaintiffs at their word that they had in fact already conducted a reasonable search for responsive materials, produced responsive materials, and provided truthful and complete discovery responses. The record now shows that many plaintiffs did otherwise.”
Based on the substance of recent depositions, Giant Eagle now seeks sanctions against plaintiffs Lisa Brannigan, Nathanael Dollar, Kristie Harnish, Tommy Wynkoop, Nicholas Conley, Kerry Palladino, Jefrey Coulson, Sharon Burton, Stephen McRae, Molly Shirk, Carol Stevanus and Robert Ree – for various offenses which they say constitute discovery misconduct.
“Some failed to preserve, search for or produce responsive materials. Others falsely answered written discovery aimed at the heart of their claims – whether or not they could comply with Giant Eagle’s face covering policy by wearing some type of face covering. By ducking targeted discovery designed to simplify this action and forcing Giant Eagle to take depositions in order to identify their misconduct, these plaintiffs turned Federal Rule of Civil Procedure 1 on its head,” the motion explained.
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