Man loses injunction over Giant Eagle mask policy

A federal judge on Friday ruled against an Oil City man who claims that Giant Eagle’s covid-19 mask policy violates his rights.

Josiah Kostek, 36, was seeking a preliminary injunction to stop the grocery chain’s mask policy. He contended the policy — requiring all customers to wear either a face mask or full face shield while shopping — goes against the Americans with Disabilities Act. He claimed excluding him from the store was an act of retaliation.

Giant Eagle argued that Kostek “presented a direct threat to the health and safety of others, including customers and employees.”

U.S. District Judge Nora Barry Fischer ruled in the store’s favor, denying Kostek’s motion. She found that he failed to meet any of the necessary requirements to obtain the injunction.

Kostek was arrested on May 16 at an Oil City Giant Eagle store on a charge of disorderly conduct for making unreasonable noise after a dispute when he refused to put on a mask. He pleaded guilty to that count on July 14.

He filed a federal lawsuit against the store on June 3. It has since been consolidated with several dozen other plaintiffs.

In her 10-page opinion on Kostek’s motion for a preliminary injunction, Fischer said that Kostek, who claimed he cannot wear a mask “without experiencing severe anxiety, [and] difficulty breathing,” failed to present any medical evidence to back up his claim.

Instead, she noted “numerous inconsistent statements he made in social media posts and on [a] video wherein he says that he is able to wear a mask but merely believes he has a right to refuse to comply with mask policies.”

In one post on a Facebook page, Kostek wrote: “I don’t mind wearing a mask, if someone tells me polite. I’m in excellent health with the exception of a herniated disk in my neck. … I have a right to refuse wearing a mask. No one can legally make me ‘Buy’ masks.”

In another, he wrote: “There are no laws stating I must wear a mask so, it can rest entirely on my Constitutional right to refuse. I’m an adult. I know how to wash my hands and not breath [sic] in peoples faces.

“I do what the hell I want,” Kostek wrote. “I go outside when I want. If stores won’t welcome [sic] in they lose my business. I’m not wearing a mask and I’m not social distancing. This is my country and I’m a free man. Anyone that tries to take that for [sic] me is a tyrant.”

In her opinion, Fischer found that Kostek is not likely to succeed on the merits of his case to secure a preliminary injunction and that he failed to meet any of the other prerequisites.

She wrote that Kostek failed to show a factual basis that he has a disability preventing him from complying with Giant Eagle’s face-covering policy.

She notes, too, that Giant Eagle allows the use of face shields instead of masks for those people who, for medical reasons, cannot wear a mask.

Kostek sought an accommodation of being permitted to shop in the store without a mask. However, Fischer’s opinion notes that Giant Eagle offers curbside serve, home delivery and personal shoppers.

The judge found that the store’s mask policies are consistent with the orders issued in the spring by state Health Secretary Dr. Rachel Levine relative to the pandemic.

“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.”

Relative to a May 27 video Kostek also posted on Facebook, Fischer wrote that it “clearly shows that Kostek intentionally entered the store without a mask or face covering for the purpose of causing a scene and creating a confrontation to see if he would be arrested again.”

The video begins with him entering the store. When an employee asked him to put on a mask, Kostek replied, “I have a disability.”

Later, after buying fruit, he continued, “People don’t seen to be too pleased that I’m here. Maybe they heard about the lawsuit pending.”

Later, he said to an employee, “I don’t want you touching my stuff. I don’t know if you wash your hands. The Constitution allows me to do my shopping.

“You cannot refuse somebody who doesn’t wear a mask, especially somebody with a medical disability.”