PITTSBURGH – A thrice-amended class action lawsuit from 47 plaintiffs opposing a mandatory policy instituted by Giant Eagle grocery stores to wear masks in its stores during the coronavirus pandemic has been dismissed from federal court.
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. These sanctions disputes would continue to take place over the following year of litigation.
For example, Giant Eagle’s counsel filed a motion for sanctions against plaintiff Gregory Mandich on May 27 for failure to attend his own deposition for the second time – and on June 7, Mandich’s counsel filed an opposing response to the defense’s attempt to sanction him for missing his deposition appointments. However, this financial dispute was later resolved amicably.
UPDATE
On Dec. 7, U.S. District Court for the Western District of Pennsylvania Judge Nora Barry Fischer dismissed the case in a memorandum opinion, finding that the federal claims have been shown to be moot and the state law claims dismissed without prejudice, in order for them to be litigated in state court.
“Plaintiffs’ only federal claims under Title III of the Americans with Disabilities Act for discrimination and retaliation/coercion seek prospective injunctive relief affording them an accommodation under the policy due to their asserted disabilities which would permit them to shop at Giant Eagle stores without masks. However, it is uncontested that the challenged mask policy is no longer in effect and Giant Eagle’s customers can freely shop without masks or face coverings at its stores,” Fischer said.
“The U.S. Court of Appeals for the Third Circuit and other federal courts across the country have reviewed similar legal challenges to COVID-19 restrictions which have been lifted and generally determined that claims seeking to enjoin such restrictions are no longer justiciable under Article III of the U.S. Constitution. Given the Court’s continuing obligation to ensure that it maintains subject matter jurisdiction over this action, a rule to show cause was issued on the parties to demonstrate why plaintiffs’ Title III ADA claims should not be dismissed, as moot, and the Court should not decline to exercise supplemental jurisdiction over their state law claims. After careful consideration of the parties’ positions and for the following reasons, the Court will dismiss this case, as the Court lacks subject matter jurisdiction over the non-justiciable federal claims and declines to exercise supplemental jurisdiction over the remaining state law claims.”
Fischer added that all of the remaining plaintiffs asserted state law claims for damages under the Pennsylvania Human Relations Act, with four of them bringing claims for negligence/reckless conduct – additionally, one plaintiff has a claim for assault/battery and another plaintiff has a PHRA claim against the owner of the Ligonier store, C&J Grocery, and its manager, Matt Faccenda.
Fischer explained that the many changes which have taken place since the beginning of the pandemic have had substantial impact on the claims at issue.
“The many legal and factual changes since the height of the pandemic in April of 2020 when Giant Eagle initially adopted its no exception mask policy, make it implausible that it would impose a substantially similar policy on all customers in the future. While defense counsel suggests that Giant Eagle continues to believe that the mask policy was lawfully enacted and speculates that the company could revert to it at any time during the ongoing COVID-19 pandemic, the policy was not discontinued due to this lawsuit. Instead, Giant Eagle dropped its policy after the state mask mandate expired in June of 2021 and none of the businesses across the Commonwealth have been required to have their customers ‘mask up’ since that time,” Fischer stated.
“Despite defendants’ objections, they have not produced any evidence that Giant Eagle plans to revert to the original policy requiring all customers to wear masks and not allowing them to wear face shields or other face coverings…the track record of Giant Eagle permitting face shields and other face coverings from June 12, 2020 until the expiration of the state mandate in June of 2021 and not re-imposing the more restrictive policy ‘during the Delta and Omicron waves – nor during the less extreme increase of [COVID-19 cases in] May 2022’, demonstrates that it is implausible that the company would return to the more restrictive policy demanding that all shoppers wear masks at this point in the pandemic, where vaccines, booster shots and other therapeutic treatments are widely available to combat COVID-19.”
For these reasons, Fischer found that the plaintiffs’ Title III ADA discrimination and retaliation/coercion claims are moot and must be dismissed for lack of subject matter jurisdiction. As to the state law claims, Fischer declined to exercise supplemental jurisdiction over them and dismissed them without prejudice, so that they may be pursued in a state court.
“As there is no ongoing case or controversy of federal law and only state law issues remain to be decided in this case between Pennsylvania-based Giant Eagle and its local customers, the Court believes that the interests of judicial economy, convenience, and fairness weigh strongly in favor of declining supplemental jurisdiction over plaintiffs’ state law claims so that they can be adjudicated in an appropriate state forum. Most importantly, the PHRA claims for damages present a dispute that is best suited for resolution by a state tribunal because plaintiffs assert that Giant Eagle refused them service in violation of the state mask mandate issued by the Secretary of Health. In any event, the primary reasons cited by defendants for this Court to retain jurisdiction over the state law claims have now been resolved,” Fischer stated.
“All told, the purpose of the Court consolidating these individual actions was to streamline the litigation of the common legal and factual issues regarding plaintiffs’ Title III ADA claims for injunctive relief and now that those claims have been dismissed, the state law claims will be dismissed, without prejudice, to be refiled in state court.”
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