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Fifth Circuit Revives Lawsuit of Texas Man Who Refused to Wear Mask at Food Bank

El Pasoans Fighting Hunger Food Bank

El Pasoans Fighting Hunger Food Bank

A federal appeals court resurrected the lawsuit of a Texas man who sued a food bank for disability-based discrimination when it threw him out after he refused to wear a mask during the COVID-19 pandemic.

El Pasoans Fighting Hunger (“EPFH”) is a food bank in El Paso, Texas, that distributes food to those in need at walk-up locations. During the COVID-19 pandemic, EPFH required all food recipients to wear face coverings while receiving food.

Alejandro Hernandez alleged in court documents that on Jan. 10, 2021, he was “physically pushed out of the building” and “sham[ed] in the form of name calling” by a male EPFH staffer when he refused to wear a mask for “medical reasons.” Hernandez said in court documents that he cannot wear a face mask due to his deviated septum, severe PTSD, and “chronic anxiety and panic triggers that hinder breathing abruptly.” Hernandez said that during the incident, he was “publically [sic] labeled with demeaning, humiliating and degrading language and treatment” by the food bank and its employees.

Hernandez then sued EPFH and two of its employees in federal court for violations of the Americans with Disabilities Act (“ADA”).

U.S. Magistrate Judge Robert Castaneda recommended dismissal of  Hernandez’s case in April 2o21, reasoning that Hernandez failed to plead facts that demonstrate disability-based discrimination.

Castaneda wrote, “While Plaintiff alleges that he was denied service by Defendants, this was not based on his disability.” He continued, “Rather, Plaintiff alleges that he was denied service due to Defendants’ mask policy, under which “all customers [are required] to wear face coverings to obtain food, with no exception for customers who cannot wear a face covering for medical reasons.” The district court adopted Castaneda’s recommendations and dismissed the case.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, however, reversed most of Castaneda’s ruling Friday, reviving Hernandez’s lawsuit. The unsigned 7-page order will give Hernandez, who represents himself in the action, the chance to amend any errors in his complaint and continue litigation against the food bank.

The panel was comprised of U.S. Circuit Judges Catharina Haynes, a George W. Bush appointee; Carl Stewart, a Bill Clinton appointee; and Senior Circuit Judge Carolyn Dineen King, a Jimmy Carter appointee. Although the opinion was unsigned, Judge Haynes was noted as concurring only in the judgment.

The panel began by noting that in making its decision, the district court improperly relied on EPFH’s website to determine whether the food bank allowed for an accommodation (such as home delivery) that would have suited Hernandez’s needs. Though the district court found that an alternative was listed on the website, the Fifth Circuit judges remarked, “What is troubling, however, is that we cannot locate the information the district court cited on EPFH’s website.”

The panel agreed with the lower court that Hernandez’s complaint failed to adequately make out a claim for ADA relief — but instead of affirming the case’s dismissal on those grounds, the appeals panel gave the plaintiff some guidance as to how to fix his pleadings.

The ruling states: “Thus, the Complaint would likely be well pleaded had it alleged facts showing that Defendants refused to ensure that home delivery was an effective alternative. But this link in the logical chain is not supported by any factual allegations.”

The panel also took issue with the lower court’s finding that Hernandez’s complaint had been “frivolous.” The court wrote that EPFH “makes no exceptions for its masking policy, effectively preventing Hernandez from accessing its services,” and points to Hernandez’s allegations of experience “backlash” when he walked up to receive food.

“We cannot reason that any of these facts (or the others alleged in the Complaint) are ‘fanciful,’  ‘fantastic,’ or delusional,’ nor do these allegations read as ‘irrational’ or ‘wholly incredible,'” said the court as it directed the district court to allow Hernandez a chance to amend his original filing.

In a footnote, the panel also noted that in the intervening period since Hernandez’s filing in March 2021, masking requirements have relaxed in many places. Accordingly, the district court should first determine whether Hernandez is moot for seeking to enjoin a policy that is no longer in effect.

The parties did not immediately respond to request for comment.

[screengrab via El Pasoans Fighting Hunger]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos