By Hailey Konnath

Law360 (October 23, 2020, 11:32 PM EDT ) A Pennsylvania federal judge on Friday refused to block a grocery store's mandatory mask policy, holding a shopper claiming he can't wear a mask because of his anxiety hasn't shown that he can't just wear a face shield or order grocery delivery instead.

Josiah Kostek claims that he has medical problems that cause him anxiety and has trouble breathing when wearing a mask. In his suit, he said he's twice been thrown out of an Oil City, Pennsylvania, Giant Eagle in May because he refused to wear a mask.

Kostek was seeking a preliminary injunction to stop Giant Eagle from enforcing its mandatory, no-excuses face-covering policy, arguing that Giant Eagle can't use the pandemic to turn away customers with disabilities that render them unable to wear masks, arguing that the Americans with Disabilities Act only provides exemptions for individuals who pose a threat.

The court denied an earlier preliminary injunction bid from Kostek, but he submitted an amended version that included his medical records, a video recording of one of his visits to the store and other pertinent records.

But U.S. District Judge Nora Barry Fischer on Friday again sided with the grocer, finding that Kostek is not likely to succeed on the merits of his claims. Kostek hasn't shown he has a disability preventing him from complying with the face covering policy, she said. He also hasn't contested that the state health department allows individuals to wear a face shield if a mask cannot be worn, Judge Fischer noted.

"Kostek has neither alleged nor presented any evidence that he is unable to wear a full-face shield due to a disability," she said.

Judge Fischer added that "the record is devoid of any evidence that a medical professional has opined that he cannot wear a mask."

And Kostek's statements in court and in his medical records are inconsistent with his remarks on social media, where he's said "he is able to wear a mask but merely believes he has a right to refuse to comply with mask policies," the judge said.

"In fact, many of these social media posts were made prior to Kostek returning to the Oil City Giant Eagle on May 27, 2020, and could provide the store with sufficient grounds to exclude him," Judge Fischer said.

"Overall, Kostek has failed to marshal sufficient evidence to prove that Giant Eagle's face covering policy discriminates against him due to his disabilities and therefore, he is not likely to succeed on the merits on his ADA claims," the judge said.

Kostek also hasn't met his burden to show that his requested accommodation of being permitted to shop without a mask is "reasonable or necessary," the judge added.

Kostek is alleging that the grocer wrongly claimed the threat of spreading the pandemic allows it to bar customers without face coverings. In addition to the injunction, he's seeking a declaratory judgment that its refusal to exempt customers with disabilities violates the ADA.

Many other retailers around the country implemented face-mask requirements this summer 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, 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.

The grocer also 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 had 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.

And Kostek said sealed evidence he provided from a counselor showed that he experienced anxiety and post-traumatic stress disorder 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.

Thomas Anderson, counsel for Kostek, told Law360 on Friday that the burden of proof required to obtain a preliminary injunction "is very high."

"We will now proceed to discovery on all 68 plaintiffs' cases," he said. "I suspect there will be numerous questions of fact for the jury to decide once documents are produced and witnesses are deposed."

Counsel for Giant Eagle didn't immediately return a request for comment late Friday.

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

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

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

--Additional reporting by Matthew Santoni. Editing by Michael Watanabe.

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