Affirming summary judgment for an employer, a California appellate panel said an employee could not advance claims of harassment, discrimination and retaliation based on her egg retrieval procedures.

Erika Paleny informed her supervisor at Fireplace Products (Fireplace) in late 2018 that she would be undergoing oocyte (egg) retrieval procedures to both donate and freeze eggs for herself for potential use in the future.

According to Paleny, her supervisor disapproved of the procedures and then harassed her for needing time off to attend related appointments. Paleny claims that she was fired after requesting additional time off related to her egg-retrieval.

Paleny then filed suit against Fireplace and her supervisor with a host of claims, including violations of the Fair Employment and Housing Act (FEHA) and California’s Pregnancy Disability Leave Law.

The defendants moved for summary judgment, arguing that Paleny was not a member of a FEHA-protected class because she was not pregnant or attempting to get pregnant, nor was she disabled, during her employment.

When the trial court granted the motion, Paleny appealed. She took the position that freezing her eggs for potential future use qualified as a pregnancy “related medical condition.” The appellate panel disagreed, affirming summary judgment for the defendants.

Beginning with the Pregnancy Disability Leave Law (PDLL), the court explained that the undisputed facts that Paleny was not pregnant and had not identified a medical condition or disability related to pregnancy were fatal to her claims.

“All of [Paleny’s] causes of action derive from the contention that she was either pregnant or was disabled by pregnancy,” the court wrote. “Neither is the case.”

It was undisputed that Paleny was not pregnant during the term of her employment, the court said, nor could she show that she was “disabled by pregnancy” under the PDLL.

According to the Fair Employment and Housing Commission, “[a] woman is ‘disabled by pregnancy’ if, in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, to her pregnancy’s successful completion, or to other persons.”

Paleny had not presented any evidence that her health care provider advised or recommended that she not perform one or more essential functions of her job. To the contrary, Paleny testified that she did not consider herself unable to do so and she did not request leave or other accommodations.

Her disability claims under the general FEHA provisions also failed, because she did not disclose a disability and did not have any condition that impacted her ability to work or that required the use of leave, sick time or other accommodation, the court said.

For the same reasons, Paleny could not make a prima facie case that Fireplace failed to accommodate a disability or failed to engage in the interactive process.

Paleny emphasized the phrase “related to,” asking the court to give it the broadest interpretation such that it included medical procedures related to potential pregnancies and specifically provide protection for those who may need to undergo an egg freezing procedure.

“We decline to do so on this record,” the court wrote. “The plain language of the statute provides protections for medical conditions related to pregnancy or childbirth, and therein lies the proper focus.”

Paleny “may be technically correct that a woman may suffer certain medical conditions related to pregnancy, such as postpartum depression or mastitis, while not pregnant or trying to become pregnant,” the court added. “But the statute clearly requires the presence of a medical condition related or intrinsic to pregnancy to trigger the protections under the FEHA. [Paleny] has not identified such a condition.”

Further, the court was not persuaded that egg retrieval and storage for possible future use should be recognized as a pregnancy-related medical condition similar to infertility.

“We see a distinction between a medical procedure related to possible future pregnancy and the pregnancy-related medical condition contemplated in the statute,” the court said. “Again, there is no evidence that [Paleny] was pregnant, infertile, or addressing some other medical condition. She was undergoing an elective medical procedure but, without an underlying medical condition related to pregnancy, [Paleny] does not have a protected characteristic under the FEHA.”

To read the opinion in Paleny v. Fireplace Products, U.S., click here.

Why it matters

The California appellate panel declined to adopt an interpretation of FEHA to protect time off related to the plaintiff’s egg retrieval procedures, which were unrelated to a medical condition and were not undertaken in an attempt to become pregnant. The court found plaintiff’s preemptive egg-freezing, for a possible future pregnancy, too attenuated for protection under the statute.