By Matthew Santoni

Law360 (July 29, 2020, 6:56 PM EDT) -- Pittsburgh-based Giant Eagle grocers can't use the public health threat of the COVID-19 pandemic to turn away customers with disabilities that render them unable to wear masks, because the Americans with Disabilities Act only provides exemptions for individuals who pose a threat, a spurned customer told a federal court Tuesday.

Josiah Kostek, who says he was twice thrown out of an Oil City, Pa., Giant Eagle in May because he had medical problems that cause him anxiety and breathing trouble when wearing a mask, said the grocer wrongly claimed the threat of spreading the pandemic allows it to bar customers without face coverings.

"The ADA regulations only apply the term 'direct threat' to an individual, not a generalized threat of any virus, and the regulations require an 'individualized assessment' of whether the person is a direct threat, which Giant Eagle did not do," Kostek's reply said. "Giant Eagle cannot use the virulence of the novel coronavirus in and of itself as a basis to refuse to modify its zero-medical disability exception mask policy."

Kostek is seeking a preliminary injunction to stop Giant Eagle from enforcing its mandatory, no-excuses face-covering policy, and a declaratory judgment that its refusal to exempt customers with disabilities violates the ADA. Many other retailers around the country have implemented face-mask requirements in recent weeks as some states saw a surge in COVID-19 cases; dozens of cases against Giant Eagle, whose Pennsylvania stores were early adopters of mask requirements, were consolidated in Pittsburgh's federal court.

In a brief defending its policy July 15, Giant Eagle said it didn't have to make accommodations that posed a "direct threat" to the health of its staff or other customers, citing the U.S. Supreme Court's 1987 decision in School Board of Nassau County v. Arline, in which a teacher's tuberculosis counted as a disability, but the school didn't have to accommodate it in a way that would risk spreading the disease. The law was later amended to incorporate a direct-threat exemption, the grocer noted.

Kostek countered that the section of the law governing "direct threats" required operators of public accommodations to make an individualized assessment of the risk, the probability that a potential injury will actually occur, and whether reasonable changes can mitigate that risk. An assessment of the virus, and not the customer, did not count, the reply brief said.

"Giant Eagle makes a general statement that 'COVID-19 is a direct threat to the health and safety of others,'" Kostek's reply said. "Giant Eagle makes this argument because it made no individualized assessment of plaintiff or any other individual, it merely adopted a policy and instructed its employees that no medical exceptions were allowed."

Kostek also opposed the grocer's claims that offering online ordering, curbside pickup or personal shoppers for people who would not wear masks were reasonable substitutes for in-person shopping, arguing that the company still violated the ADA.

"It matters not that Giant Eagle tried to implement or increase the availability of other options for customers who cannot wear masks inside its stores. Disabled individuals may not be told they must wait outside for someone else to select their groceries and bring the items outside, while nondisabled customers shop inside the store," the reply said.

Giant Eagle was legally required to create a "like experience" that gives disabled customers "full and equal enjoyment" of its services, Kostek said.

The grocer had questioned the legitimacy of Kostek's disability, pointing to Facebook posts he made to a group called "Wolferines: Fighting for Small Business in PA" — an apparent reference to Pennsylvania Gov. Tom Wolf and the band of teenagers who resisted a Soviet invasion in the Cold War movie "Red Dawn." In the post, Kostek allegedly said that "I don't mind wearing a mask, if someone asks me polite" and that he was in excellent health, but nonetheless had a right to refuse to wear a mask.

Kostek said sealed evidence he provided from a counselor showed that he experienced anxiety and PTSD that prevented him from wearing masks or a soft cervical collar. He said his ban from Giant Eagle constituted retaliation against him for demanding that the grocer follow the law.

Kostek said Giant Eagle's arguments that accommodating maskless shoppers would be unreasonable failed, pointing to the chain's stores in other states that did not have a mask requirement. Though Giant Eagle said a May 28 proposal to stop enforcing the policy at the door was met with a threat of walk-offs by its employees' union, Kostek said that only showed that the company had caved to the workers and still refused to follow updated state guidance, issued the same day. Those guidelines said people with disabilities that rendered them unable to wear masks were exempt from statewide mask requirements.

As an exhibit backing his claim that allowing medical exemptions was not a burden, Kostek submitted a flyer, allegedly from a GetGo gas station affiliated with Giant Eagle, that said face coverings were required, but "If you are not wearing a mask, we respectfully assume it's due to a medical condition."

An attorney for Kostek and counsel for Giant Eagle did not immediately respond to requests for comment Wednesday.

Kostek and the other plaintiffs are represented by Thomas B. Anderson of Thomson Rhodes & Cowie PC.

Giant Eagle is represented by Jonathan D. Marcus, Jeremy D. Engle and Lauren Melfa Catanzarite of Marcus & Shapira LLP.

The case is Pletcher v. Giant Eagle Inc., case number 2:20-cv-00754, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Peter Rozovsky.

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