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Giant Eagle wins first court fight

Judge rejects injunction request by shopper over mask requirement

Giant Eagle Inc., which operates many grocery stores in Western Pennsylvania, including ones in Altoona and Roaring Spring, as well as other nearby communities, has won the first round in a challenge to its requirement that all customers must wear face coverings while in its stores.

A U.S. District Judge in Pittsburgh, Nora Barry Fishcher, has rejected an injunction request by Giant Eagle shopper, Josiah Kostek, who was twice denied entry to a store in Oil City because he was not wearing a face mask.

Kostek was asked to leave a Giant Eagle store on May 16 despite his contention that he suffered from a medical condition which makes it difficult to breathe while his face is covered.

When he balked at being denied service, police were called and he was charged with disorderly conduct (making unreasonable noise).

He was eventually found guilty of the summary offense.

Kostek became one of many customers who joined a lawsuit that charges Giant Eagle with violation of Title III of the Americans with Disabilities Act — prohibiting discrimination in places of public accommodation.

Giant Eagle answered the many alleged disabled customers by pointing out it allows face shields as an alternative to masks and also provides curbside service, home delivery or “personal shoppers.”

The Pittsburgh-based chain argued that its policies complied with directives issued by Pennsylvania’s Secretary of Health, Dr. Rachel Levine, who recommended the wearing of facial coverings to limit the spread of the coronavirus.

Fischer initially denied a temporary injunction be­cause Kostek’s claim that he had a medical condition that prevented him from wearing a face mask was simply a statement without proof.

In an amended request for an injunction, Kostek presented his medical records to the judge showing that he suffers from anxiety and other conditions, but Judge Fischer pointed out that his doctors, while outlining his medical problems, did not say he was unable to wear a face mask.

In her opinion, she noted that Kostek was quoted on social media and in a video presented to the court in which he stated, “I don’t mind wearing a mask if someone tells me polite.”

The judge outlined four criteria for issuing an injunction: that the lawsuit is likely to succeed during trial; that lacking an injunction would cause irreparable harm; that the defendant (Giant Eagle) would suffer harm, or that an injunction would serve the public interest.

In her opinion, Fischer focused on the fact that Kostek’s claim in the long run would not succeed due to his statements on social media.

She stated that Kostek has not presented a factual basis that he has a disability that prevents him from complying with Giant Eagle’s face covering policies.

Fischer said that Kostek, represented by Pittsburgh attorney Thomas B. Anderson, does not challenge Levine’s conclusion that COVID-19 “is a contagious disease that is rapidly spreading from person to person,” and that, “People infected are capable of exposing others to COVID-19 even if their symptoms are mild. …”

She stated, “It is the court’s opinion that Giant Eagle’s policies are consistent with Secretary Levine’s orders and recommendations and represent a reasonable interpretation of the same.”

While Fischer rejected the request for an injunction that would have forced Giant Eagle to permit individuals with disabilities to shop without wearing masks, she did not dismiss the overall lawsuit filed by Anderson. The lawsuit will move forward.

Anderson last week filed an amended 78-page complaint that includes Kostek and 70 other plaintiffs.

He also proposed a schedule in which additional parties can be added to the lawsuit by Dec. 14, and that fact discovery be completed by April 30, 2021.

The Giant Eagle attorney, Jonathan D. Marcus of Pittsburgh, contended in a proposed case management order filed last week that in view of the judge’s decision on the injunction request, the question boils down to: “Can (the many plaintiffs) shop in Giant Eagle’s stores like anyone else, regardless of their alleged disabilities?”

He predicted limited discovery in the case will show … “that plaintiffs do not have disabilities that prohibit them from wearing these alternative face coverings.”

Giant Eagle customers who are suing include shoppers at stores in Altoona, Roaring Spring, Northern Cambria, Ebensburg, Johnstown, Indiana, Somerset and stores in the Pittsburgh and northwest Pennsylvania areas.

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