McGraw, Justice, dissenting:
In this case, Ms. Toth argued that she suffered discrimination because she had
prevailed in her prior lawsuit against her former employer. I believe that she raised a genuine
issue of fact on this point. As the majority notes, [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. Syl. pt. 3, Aetna
Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d
I feel that Ms. Toth established a prima facie case that she suffered discrimination because she had availed herself of the constitutionally protected right to apply for redress of grievances. Though a jury may have ultimately found against Ms. Toth on this issue, I believe that she should have had the opportunity to present evidence of this claim to a jury of her peers. Therefore, I must respectfully dissent.