Giant Eagle defends mask policy in answer to lawsuit

Giant Eagle is defending itself after a lawsuit filed by more than 30 people claims the grocery chain’s face mask policy is discriminatory toward disabled shoppers.

In a response to a consolidated federal lawsuit that names 35 plaintiffs but specifically cites plaintiff Josiah Kostek, lawyers for Giant Eagle called for a judge to deny a preliminary injunction.

The original suits, filed between May and June, alleged that Giant Eagle’s policy surpasses the state-ordered mandate for masks in public places. Gov. Tom Wolf’s order makes allowances for children and people with disabilities, and states that customers do not need a medical excuse to forgo a mask.

Several plaintiffs describe Giant Eagle employees yelling at them and physically escorting them from stores when they tried to shop without masks.

Lawyers for the grocery chain said the company “took every reasonable step to protect and accommodate” customers and employees from the pandemic.

“We are in the midst of a public health crisis. Mounting evidence indicates face coverings protect others from the transmission of covid-19, particularly indoors,” wrote lawyers Jonathan Marcus and Jeremy Engle with Pittsburgh-based Marcus & Shapira law firm.

They noted customers have other options, including curbside pickup, home delivery and the use of a personal shopper.

Specifically responding to Kostek’s lawsuit, the lawyers wrote: “This takes some nerve.” According to the response, Kostek was shopping at the Oil City store when he was asked to put on a mask to which he responded, “My body, my choice.”

When he was repeatedly asked to put a mask on, officials said he yelled at employees and berated an employee who would not serve him without a mask. Kostek was arrested and asked to not trespass at the Oil City store again, according to documents.

Giant Eagle lawyers cited a Facebook post from Kostek in which they say he wrote, “I don’t mind wearing a mask if someone asks me polite. I’m in excellent health … (but) I have a right to refuse wearing a mask.”

Marcus and Engle said the post shows Kostek publicly admitted he did not have a disability that prevents him from wearing a mask; he cannot show irreparable harm due to other shopping options; and that the immediate health risks to employees and customers “outweigh any alleged inconvenience to Kostek.”

Reached by phone, Kostek said the post was taken out of context. He said he is physically healthy but has anxiety, depression and post-traumatic stress disorder.

“If I’m healthy, why should I have to wear a mask if it’s only going to protect against droplets?” Kostek said. “Masks are meant for sick people, and that’s exactly what the CDC recommended. If you’re sick, you need to wear a mask. If you’re elderly, you need to wear a mask. Healthy people, it’s only going to harm their health further.”

Kostek said he is working with his lawyer to craft a response.

Current CDC guidelines recommend “that people wear cloth face coverings in public settings … [to] help prevent people who have covid-19 from spreading the virus to others. Cloth face coverings are most likely to reduce the spread of covid-19 when they are widely used in public settings.”

According to the Giant Eagle response, several other incidents have occurred at Giant Eagle stores when employees asked shoppers to wear masks.

At the New Kensington store, an employee was allegedly punched after asking a customer to wear a mask.

In Allegheny Township, a plaintiff returned to the store after filing a lawsuit and shouted profanities at employees, lawyers said. According to the response, someone flashed a gun at an employee at the Franklin store.

“An overwhelming majority of customers and team members applaud Giant Eagle’s efforts to keep its stores as safe as possible during the covid-19 pandemic,” the company’s legal response reads. “But a small minority object, and some have acted violently toward or sought to intimidate Giant Eagle’s team members who are merely doing their jobs.”

According to lawyers, relaxing the mask policy would open the grocery chain up to possible litigation.