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Lown v. Place6/4/1999
Plaintiff Joyce Lown appeals as of right the trial court order granting defendant's motion for summary Disposition pursuant to MCR 2.116(C)(10) in this action under the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq; MSA 3.550(101) et seq. We affirm.
Defendant JJ Eaton Place is a restaurant owned in part by Deanne Davis. In July 1994, Davis hired plaintiff as a prep cook. At that time, plaintiff told Davis that she had "physical problems" that caused her to suffer intermittent pain and cramps. In August 1994, plaintiff was diagnosed with endometriosis. That same month, plaintiff underwent surgery. When she returned to work, plaintiff submitted a note from Dr. Kelly dated August 17, 1994, which stated that plaintiff could "do no heavy lifting or bending until after her 1 month post operative check up."
Plaintiff's duties as a prep cook never caused her any difficulties. Plaintiff testified that she often received help lifting heavy objects, such as bags of onions or carrots. When no assistance was available, plaintiff would make multiple trips with smaller loads. However, periodically during her employment with defendant, plaintiff was required to work as a dishwasher. Plaintiff had no problems when she had help in the dish room, but when assigned to work by herself, she experienced pain while carrying large tubs of dirty dishes and stacks of clean dishes. Plaintiff nevertheless did the work because she was afraid that she would be fired if she refused.
When plaintiff arrived at work the morning of March 27, 1995, she was told by another employee that she would be working alone in the dish room that day. Plaintiff called Davis at home to tell Davis that she could not work in the dish room by herself for eight hours because she had "been up all night hurting." Davis told plaintiff that she had to work in the dish room because several other employees were out sick. After plaintiff refused to do so, Davis told her to go home. When plaintiff returned to work several days later, she discovered that she had been fired.
On October 18, 1996, plaintiff filed her complaint in the instant case. Plaintiff alleged that she was disabled within the meaning of the PWDCRA because she "suffers from endometriosis, which causes her pain in the abdomen and which restricts her ability to lift." Plaintiff further alleged that defendant discharged her because of her status as a disabled individual, even though her disability was unrelated to her ability to perform her job , and that defendant had not discharged other, non-disabled individuals for refusing to perform dishwasher duties.
On June 24, 1997, defendant moved for summary Disposition pursuant to MCR 2.116(C)(10) on the basis that plaintiff had not established that she had a disability as defined in the PWDCRA. Defendant conceded that plaintiff had endometriosis, but asserted that plaintiff was not disabled within the meaning of the PWDCRA because her endometriosis did not substantially limit any major life activities. Following oral argument, the trial court held that plaintiff was not disabled under the PWDCRA and therefore granted defendant's motion for summary Disposition.
I.
Plaintiff first argues that the trial court erred in refusing to allow her to amend her complaint. Plaintiff presented notes prepared by a physician, dated May 7, 1994, stating that plaintiff "has a mild speech defect and abnormal facies, almost like Down's but no clue that she has any intellectual limitations." In a brief opposing defendant's motion for summary Disposition, plaintiff anticipated that she would be seeking leave to amend her complaint to allege discrimination based on plai
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