On The Case

As COVID-19 spreads, Pittsburg judge rejects injunction bid by mask challengers

(Reuters) - The regional grocery chain Giant Eagle has a strict policy to combat COVID-19 at its Pennsylvania stores: Customers are not permitted to enter its shops without a face covering. Shoppers can use masks or face shields. And if they are unable to wear a mask or face shield, Giant Eagle will provide personal shoppers to fill customers’ orders, even while shoppers wait. Or they can pick up their groceries curbside at Giant Eagle stores. Or have their food delivered. Customers just can’t go inside Giant Eagle stores in Pennsylvania without covering their faces.

The grocery chain says its policy is intended to comply with Pennsylvania COVID orders and to keep its employees and customers safe. More than 60 Giant Eagle shoppers, however, contend that the store’s rules in Pennsylvania are a violation of their civil rights under the Americans with Disabilities Act. In a consolidated complaint filed in August in federal court in Pittsburgh, the customers’ lawyer, Thomas Anderson of Thomson Rhodes & Cowie, alleged that Giant Eagle’s no-exceptions Pennsylvania policy on face coverings discriminates against people whose disabilities prevent them from wearing masks. The allegedly disabled customers also moved for a preliminary injunction to force Giant Eagle stores in Pennsylvania to allow them to shop without face coverings.

The litigation, as I told you in July, has been the most prominent challenge to a retailer’s mandatory mask policy. U.S. District Judge Nora Barry Fischer was notably deliberative on the plaintiffs’ motion for a preliminary injunction, which was filed back on July 1, as the U.S. began to experience a summer surge of COVID-19 cases. She finally ruled Friday, as the rolling average for reported cases in the U.S. reaches new heights.

Judge Fischer denied the preliminary injunction motion, ruling that plaintiff Josiah Kostek was unlikely to prevail on his claim of discrimination. Kostek, she ruled, hadn’t offered sufficient evidence that he has a disability that precludes him from wearing a mask or a face shield – and Giant Eagle’s mandatory policy on face coverings, the judge said, was a reasonable interpretation of the state’s health orders.

Judge Fischer’s decision is quite fact specific, as I’ll explain. Because of Kostek’s failure to establish discrimination, she did not end up ruling on Giant Eagle’s contention that its policy is permitted under the ADA’s exception for legitimate safety requirements, though she did credit defense arguments that Kostek represented a direct threat to the health and safety of employees and other customers as “well taken.” Judge Fischer’s ruling does not set precedent on whether the ADA allows stores and other public places to mandate masks or other face coverings for all customers.

But the decision is nevertheless important. An injunction against Giant Eagle might have emboldened mask challengers to sue other retailers in Pennsylvania and beyond, forcing stores to loosen their policies on face coverings for fear of violating the ADA. Friday’s ruling also makes clear that mask challengers will have to prove they can’t wear face coverings because of specific disabilities.

Kostek counsel Anderson, who also represents the other customers who have sued Giant Eagle for ADA violations, did not respond to my email. Giant Eagle lead counsel Jonathan Marcus of Marcus & Shapira declined to provide a statement on Judge Fischer’s ruling.

Kostek alleged that he suffers from anxiety disorder, panic disorder, post-traumatic stress disorder and other conditions that cause him to experience panic attacks and breathing difficulties when he wears a face covering. He was twice turned away from Giant Eagle stores when he declined to wear a mask and declined employees’ offers to shop for him. Kostek was arrested after one of his visits and was eventually found guilty of disorderly conduct. After the second incident, Giant Eagle notified him that he was banned from the store.

He presented medical records verifying that he has been diagnosed with mental health conditions. His records also reflected that he told medical professions he had experienced difficulties with masks – but only after his run-ins at Giant Eagle.

The grocery chain, meanwhile, showed Judge Fischer that Kostek’s own social media posts undermined his assertion that his disability prevented him from wearing a face covering. Kostek said in one Facebook post that he was in “excellent health” and did not mind wearing a mask “if someone tells me polite.” In a video post about one of his visits to Giant Eagle, he said, “I do what the hell I want.… I’m not wearing a mask and I’m not social distancing. This is my country and I’m a free man. Anyone that tries to take that (from) me is a tyrant.” Those statements, Judge Fischer said, could even be considered adequate justification for Giant Eagle to exclude Kostek as a safety risk to employees and other customers.

Moreover, the judge said, Kostek offered no evidence that he could not wear a face shield instead of a mask, as Giant Eagle’s policy allows. Pennsylvania’s COVID-19 policy, Judge Fischer said, recommends face shields for people whose disabilities preclude them from wearing a mask. Giant Eagle’s policy, she said, complies with the state directive. And when store employees offered Kostek a different accommodation in response to his assertion of a disability, suggesting that he allow them to shop for him, Kostek “proceeded to mock the employee,” Judge Fischer said.

“Accordingly, it is neither necessary nor reasonable for Giant Eagle to alter its policy to accommodate Kostek’s unsupported disability claims,” she wrote.

The preliminary injunction ruling is not the end of the ADA challenge to Giant Eagle’s policy. Giant Eagle’s lawyers at Marcus & Shapira have moved to dismiss the consolidated complaint, arguing that the chain’s Pennsylvania policy accommodates people with disabilities while protecting the health and safety of all employees and customers. “Allowing (plaintiffs) to shop with no face covering would — quite literally — risk the lives of Pennsylvanians,” the motion said.

Judge Fischer issued a two-page order Friday converting the grocer’s dismissal motion into a motion for summary judgment. She scheduled a hearing for later this week and ordered the plaintiffs to respond by Nov. 6. If she sides with Giant Eagle and holds that the ADA does not prohibit stores from requiring face coverings, that could be last we hear of ADA challenges to masking policies that are, unfortunately, not going away anytime soon.