Worker's Family Blames Publix Mask Ban For COVID-19 Death

By Nathan Hale
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Law360 (November 23, 2020, 11:34 PM EST) -- Publix Super Markets Inc. put profits before employee safety, the family of a Florida deli worker who died after allegedly catching COVID-19 from a co-worker alleged in a lawsuit filed on Monday.

In a complaint filed in state court in Miami, the family of Gerardo Gutierrez, who died on April 28 at age 70 from complications caused by COVID-19, alleged that the Lakeland, Florida-based company breached its duty to keep its employees safe and not only knowingly failed to take proper precautions but actually prohibited its workers from wearing gloves and face masks for fear it would "incite panic" among customers.

"That Publix chose profits over the safety of its employees is shameful," Michael Levine of Stewart Tilghman Fox Bianchi & Cain PA, who is representing the family, said in a statement. "These employees, including Gerardo Gutierrez, continued to show up at work to help our communities. The least Publix could have done was allow employees to exercise their personal freedom and protect themselves from the spread of the virus."

The suit, which was brought by Gutierrez's daughter Ariane Gutierrez as representative of his estate, seeks damages on behalf of herself, her sister and two brothers for lost support and services; lost parental companionship, instruction and guidance; and mental pain and suffering resulting from their father's death. It also seeks to recover Gerardo Gutierrez's medical and funeral expenses, as well as for the loss of his prospective net earnings.

"The sudden passing of our father has been a devastating loss to our family. He was a very kind, loving and hardworking man that is greatly missed by many," Ariane Gutierrez said in a statement released through her attorneys. "He was truly loved by the people in his life. Our family is in shock that Publix would prevent its employees from staying safe. Because of its careless decisions, our father is not here with us today."

In March, as the realization set in that the spread of COVID-19 presented a major national crisis, Publix posted a statement on its website from its CEO Todd Jones saying the company had remained in close contact with the Centers for Disease Control and Prevention and would "continue to focus on keeping [its] associates healthy — and [its] stores open and stocked — to serve and support all our communities," according to the complaint.

But the suit alleges that the company's actions belie its statements touting efforts to keep employees and customers safe, including prohibiting employees from wearing personal protective equipment of any type, even their own.

The lawsuit cites five complaints the Occupational Safety and Health Administration received in March from customers and Publix employees raising concerns about the lack of use of personal protective equipment at stores around Florida.

In one, an employee from a Destin store in the Florida Panhandle told OSHA that Publix had "ordered [employees] not to wear masks," and in another, an employee in Tallahassee reported that employees were barred from wearing gloves and a request for a mask and gloves had been denied because the company "didn't want customers to panic," according to the complaint.

The suit also points to an April 3 email, in which Paul Coil, Publix's senior manager for safety, admitted that "Publix previously prohibited associates from voluntarily wearing gloves or masks," but said it did so based on CDC guidance to save protective gear for health care workers.

The family cast doubt on the company's explanation, saying in their complaint that it either ignores the reality that many of its workers, including Gerardo Gutierrez, could not properly follow CDC guidelines to socially distance or was an "after-the-fact excuse to cover up what Publix's employees were told by management: you cannot wear the masks, even if you bring your own, because it scares off the customers."

The Gutierrez family also alleges that Publix's actions lagged behind competitors and it knowingly endangered its workers and "substantially increased" the risk they would be exposed to COVID-19.

"Publix … minimized, downplayed, misrepresented, and otherwise concealed the risk posed to its employees by its prohibition on masks and other personal protective equipment," the suit said. "Publix was more concerned with protecting its sales and profits fabricating the excuse that customers would be 'turned off' by employees wearing masks."

The complaint says that Gerardo Gutierrez worked March 27 and March 28 in the deli area of the Publix in Miami Beach's Sunset Harbor store alongside a female co-worker who was exhibiting COVID-19 symptoms, including coughing.

The company knew the other employee, whose name was omitted from the complaint to protect her privacy, was not wearing a mask, but it failed to send her home and did not order her to quarantine, the complaint said.

She tested positive for COVID-19 shortly after, and on April 2, the company sent Gerardo Gutierrez home and told him to self-isolate because of his possible exposure to her, the complaint said.

On April 6, Gerardo Gutierrez came down with a cough and a fever, and he tested positive for COVID-19 the next day. He was hospitalized on April 10, and on April 28, his doctors notified his family that a priest was being called to read him his last rites, the complaint said.

Unable to go to the hospital because of the pandemic, family and friends gathered via Zoom videoconference to say their goodbyes, and Gerardo Gutierrez died on April 28.

A representative for Publix did not immediately respond to a request for comment.

The family is represented by Michael Levine and Dax Bello of the Stewart Tilghman Fox Bianchi & Cain PA.

Counsel information for Publix was not immediately available.

The case is Gutierrez v. Publix Super Markets Inc., case number 2020-025168-CA-01, in the Circuit Court for the Eleventh Judicial Circuit of Florida.

--Editing by Nicole Bleier.

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