Harley O. Staggers, Jr. Richard M. Yurko, Jr.
Staggers & Staggers David E. Dick
Keyser, West Virginia Rodney L. Bean
Attorney for Appellant Steptoe & Johnson
Morgantown, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
1. A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is
not desirable to clarify the application of the law. Syllabus point 3, Aetna Casualty &
Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770
2. Summary judgment is appropriate where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an essential element of the
case that it has the burden to prove. Syllabus point 4, Painter v. Peavy, 192 W. Va.
189, 451 S.E.2d 755 (1994).
3. The prevailing rule in distinguishing a wrongful discharge claim from an outrage claim is this: when the employee's distress results from the fact of his discharge--e.g., the embarrassment and financial loss stemming from the plaintiff's firing--rather than from any improper conduct on the part of the employer in effecting the discharge, then no claim for intentional infliction of emotional distress can attach. When, however, the employee's distress results from the outrageous manner by which the
employer effected the discharge, the employee may recover under the tort of outrage. In
other words, the wrongful discharge action depends solely on the validity of the
employer's motivation or reason for the discharge. Therefore, any other conduct that
surrounds the dismissal must be weighed to determine whether the employer's manner of
effecting the discharge was outrageous. Syllabus point 2, Dzinglski v. Weirton Steel
Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994).
4. When a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract. Syllabus point 2, Wright v. Standard Ultramarine & Color Co., 141 W. Va. 368, 90 S.E.2d 459 (1955).
a complaint against Ms. Minshall with Health Care.
After being terminated by Health Care, Ms. Minshall filed this civil action.
In her complaint, Ms. Minshall charged that she was fired in violation of the West Virginia
Human Rights Act. The cause of action was based upon the prohibition against sex
discrimination contained in W. Va. Code § 5-11-9(1) [l992]. However, Ms. Minshall
invoked the sex discrimination provision of the aforementioned statute on the basis that
Health Care terminated her because she was a lesbian. Ms. Minshall also alleged a cause
of action for intentional infliction of emotional distress. Under this cause of action, Ms.
Minshall alleged that the manner in which she was fired was intentionally outrageous. In
a third cause of action for breach of employment contract, Ms. Minshall alleged that she
was not an at-will employee and could be fired only for cause.See footnote 2
After a period of discovery, Health Care moved for summary judgment. On
May 18, 1999, the circuit court entered an order granting summary judgment to Health
Care. It is from the summary judgment order that Ms. Minshall now appeals.
now turn to the issues presented by this appeal.
Ms. Minshall's attempt to change her legal theory from sexual orientation discrimination to that of gender discrimination is problematic. This Court made clear in
Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W. Va. 692, 700,
474 S.E.2d 872, 880 (1996), the limitations of our reviewing authority in summary
Although our review of the record from a summary judgment proceeding is de novo, this Court for obvious reasons, will not consider evidence or arguments that were not presented to the circuit court for its consideration in ruling on the motion. To be clear, our review is limited to the record as it stood before the circuit court at the time of its ruling.
In the instant case, the circuit court was called upon to decide the issue of sexual orientation discrimination, not gender discrimination.See footnote 6 6 We, therefore, cannot exceed our authority and review the merits of a claim for pure gender discrimination. See Mayhew v. Mayhew, 205 W. Va. 490, ___, 519 S.E.2d 188, 204 (1999) (Our law is clear
in holding that, as a general rule, we will not pass upon an issue raised for the first time on appeal.); Kronjaeger v. Buckeye Union Ins. Co., 200 W. Va. 570, 585, 490 S.E.2d 657, 672 (1997) (We frequently have held that issues which do not relate to jurisdictional matters and which have not been raised before the circuit court will not be considered for the first time on appeal to this Court.); Koffler v. City of Huntington, 196 W. Va. 202, 206 n.6, 469 S.E.2d 645, 649 n.6 (1996) (Because plaintiff's arguments . . . , and the City's response thereto, were neither raised, argued nor considered by the circuit court on summary judgment, the subject of this appeal, they are not reviewable by this Court.); State v. Miller, 197 W. Va. 588, 597, 476 S.E.2d 535, 544 (1996) (Indeed, if any principle is settled in this jurisdiction, it is that, absent the most extraordinary circumstances, legal theories not raised properly in the lower court cannot be broached for the first time on appeal.); Barney v. Auvil, 195 W. Va. 733, 741, 466 S.E.2d 801, 809 (1995) (Our general rule is that nonjurisdictional questions not raised at the circuit court level, but raised for the first time on appeal, will not be considered.); Whitlow v. Board of Educ. of Kanawha County, 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993) (When a case has proceeded to its ultimate resolution below, it is manifestly unfair for a party to raise new issues on appeal.). Therefore, under our court precedents it was necessary for Ms. Minshall to affirmatively assert her claim of pure gender discriminationSee footnote 7 7 and defend
against the summary judgment motion before the circuit court.
on the validity of the employer's motivation or reason for the
discharge. Therefore, any other conduct that surrounds the
dismissal must be weighed to determine whether the
employer's manner of effecting the discharge was outrageous.
Furthermore, we have outlined the factors that must be proven by a plaintiff alleging a cause of action for intentional infliction of emotional distress: 'One, the wrongdoer's conduct was intentional or reckless. . . . Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. . . . Three, there was a causal connection between the wrongdoer's conduct and the emotional distress. Four, the emotional distress was severe.' Harless, 169 W. Va. at 694-95, 289 S.E.2d at 704 (quoting Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145, 148 (1974)). See also Hosaflook v. Consolidation Coal Co., 201 W. Va. 325, 336, 497 S.E.2d 174, 185 (1997).
In the instant proceeding, Ms. Minshall has identified no facts which suggest
that Health Care's conduct when effecting the discharge was outrageous. Ms. Minshall
indicates only that she was terminated shortly after returning from a previous discharge.
Such conduct, in and of itself, is simply not outrageous. Therefore, summary judgment
was appropriate for the claim of intentional infliction of emotional distress.
In the context of the employer/employee relationship, West Virginia is an at-
will jurisdiction. We indicated in Syllabus point 2 of Wright v. Standard Ultramarine &
Color Co., 141 W. Va. 368, 90 S.E.2d 459 (1955), that [w]hen a contract of employment
is of indefinite duration it may be terminated at any time by either party to the contract. It
was further held by this Court in Bell v. South Penn Natural Gas Co., 135 W. Va. 25, 31-32,
62 S.E.2d 285, 288 (1950), that [u]nder the law governing the relation of master and
servant, an employment, unaffected by contractual or statutory provisions to the contrary,
may be terminated, with or without cause, at the will of either party.
Ms. Minshall attempted to establish that an employment contract was made through an employee handbook given to her by Health Care. We noted in Syllabus point 6 of Cook v. Heck's Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986), that [a]n employee handbook may form the basis of a unilateral contract if there is a definite promise therein by the employer not to discharge covered employees except for specified reasons. The problem with Ms. Minshall's claim is that she failed to point to any language, in the
handbook or otherwise, reasonably indicating a contractual promise by Health Care not to
discharge her except for cause. Moreover, even if Ms. Minshall pointed to language in the
handbook requiring discharge for cause, the evidence is clear that she was in fact discharged
for cause. That is, she was discharged for improperly caring for a patient. We therefore find
no basis to disturb the circuit court's grant of summary judgment on this issue.
Plaintiff's only evidence to support her sex
discrimination claim is her bare argument that she was fired
because she is a female homosexual and that she would not
have been fired if she was a male homosexual. There is no
evidence that male homosexuals were treated differently than
plaintiff at [the defendant's] Heartland of Keyser [facility], nor
is there evidence that male homosexuals were ever employed
at [the defendant's] Heartland of Keyser [facility].
. . . .
Plaintiff's claim that she was discharged on the basis of sex because she was a female homosexual fails as a matter of law.
discrimination claim and asserted at the trial court level that her claim was based on sexual
orientation discrimination. The following was asserted in Plaintiff's Response to
Defendant's Motion for Summary Judgment:
I. Ms. Minshall was terminated because she is a female homosexual. In this almost all female workforce, a male homosexual would not be a perceived threat to female supervisors. Ms. Minshall testified (p.52 of deposition) that Defendant Miller's sister knew she was [sic] female homosexual therefore, a reasonable person could presume that Ms. Miller was discriminating against Ms. Minshall because of her gender, to protect her younger sister. (Citation omitted).
Defendants contend that females that are homosexuals can be discriminated against because of their gender. Defendant's argument fails however under the paradigm presented in Skaggs v. Elk Run Coal Co., 198 W.Va. 51, 479 S.E.2d 561 (1996). In Skaggs all that is required is to show that the employers were motivated at least in part to [sic] Plaintiff's gender. Therefore, if Defendants would not have taken any action against a male homosexual, then Plaintiff's gender becomes a motivating factor and is thus a violation of the law....
This same argument of sexual orientation discrimination was repeated by Ms. Minshall in Plaintiff's Updated Response to Defendant's Motion for Summary Judgment. The trial court was asked to determine whether summary judgment was appropriate regarding the claim of sexual orientation discrimination. The trial court was never asked to determine a pure gender discrimination claim for purposes of summary judgment.