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 (1963).

    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).

Per Curiam:

    Melanie L. Minshall, appellant/plaintiff (hereinafter “Ms. Minshall”), appeals from an order of the Circuit Court of Mineral County granting summary judgment to Health Care & Retirement Corporation of America, appellee/defendant (hereinafter “Health Care”). In this appeal, Ms. Minshall argues summary judgment was improper because material issues of fact existed regarding her claims for (1) sex discrimination, (2) intentional infliction of emotional distress, and (3) breach of employment contract. After reviewing the parties' briefs and considering the record and arguments in the case, we conclude that the circuit court's order granting summary judgment to Health Care should be affirmed.

    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 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.

    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 judgment appeals:
    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.

    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 claim that she was discharged on the basis of sex because she was a female homosexual fails as a matter of law.