Rebecca Swisher v. Braxton County Memorial Hospital, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

REBECCA SWISHER,

Plaintiff Below, Petitioner

v.) No. 25-ICA-221 (Cir. Ct. of Braxton Cnty. Case No. CC-04-2022-C-42)

BRAXTON COUNTY MEMORIAL HOSPITAL, INC., FILED

Defendant Below, Respondent December 22, 2025

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Rebecca Swisher appeals the April 24, 2025, order from the Circuit Court

of Braxton County, which granted Respondent Braxton County Memorial Hospital, Inc.’s

(the “Hospital”) motion for summary judgment and dismissed her wrongful termination

case. The Hospital filed a response.1 Ms. Swisher filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2024). After considering the parties’ arguments, the record on appeal, and the

applicable law, this Court finds no substantial question of law and no prejudicial error. For

these reasons, a memorandum decision affirming the circuit court’s order is appropriate

under Rule 21 of the Rules of Appellate Procedure.

Ms. Swisher is a registered nurse who was employed by the Hospital from April 29,

2014, until her termination on April 28, 2022. During her employment, Ms. Swisher was

an at-will employee and last worked as a nurse manager in the Hospital’s medical surgical

unit. It is undisputed that the Hospital is a private, non-profit, critical access hospital.

Ms. Swisher was terminated following an investigation that substantiated multiple

complaints of misconduct against her, including that she used profane and abusive

language towards staff and patients, and was verbally and physically intimidating during

encounters with staff. It is undisputed that the Hospital previously disciplined Ms. Swisher

for similar unprofessional behavior related to incidents, which occurred in May 2020,

October 2020, and January 2022. These incidents resulted in Ms. Swisher receiving written

warnings and verbal counseling. Notably, after Ms. Swisher’s January 2022 incident, the

Hospital issued a written corrective action, which advised Ms. Swisher that “further

incidents of behavior perceived as inappropriate, unprofessional, disrespectful or otherwise

may result in progressive disciplinary action up to and including termination.”

1

Ms. Swisher is represented by Ambria M. Britton, Esq., and Justin D. Jack, Esq.

The Hospital is represented by Jacqueline L. Sikora, Esq., and Brian Peterson, Esq.

1

On February 5, 2022, while at work, Ms. Swisher was physically pushed by a

Hospital visitor who was in the facility visiting their critically ill, dying parent. Ms. Swisher

appropriately reported the incident to the Hospital on February 6, 2022. Ms. Swisher

described the incident as an “assault,” but indicated that she did not feel threatened and

“related the [visitor’s] behavior to the situation.” Ms. Swisher’s report did not allege that

the visitor was attempting to harm any Hospital patient and did not express any concern

for patient safety. No complaints were received regarding Ms. Swisher’s conduct, and she

received no discipline for her conduct related to the February 5, 2022, incident.

However, the Hospital did receive additional complaints against Ms. Swisher for

her unprofessional conduct, occurring on April 5, 11, and 12, 2022 (collectively the “April

incidents”). The allegations included her use of profane language, intimidating other

members of the Hospital staff, and otherwise unprofessional behavior. On April 19, 2022,

the Hospital suspended Ms. Swisher pending an investigation into the April incidents.

Following its investigation, the Hospital terminated Ms. Swisher by letter dated

April 28, 2022, which indicated that the Hospital’s investigation substantiated the April

incidents and established that Ms. Swisher had engaged in “highly unprofessional behavior

on numerous occasions over the past thirty (30) days, which involved your use of profane

and abusive language toward staff and patients, as well as intimidating verbal and physical

encounters with staff.”

On December 12, 2022, Ms. Swisher initiated the instant litigation when she filed a

two-count complaint against the Hospital. In Count I, Ms. Swisher asserted a common law

claim pursuant to Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d

270 (1978).2 She alleged that her termination violated public policy because she was

terminated in retaliation for reporting patient safety concerns to the Hospital, which is

protected by the West Virginia Whistle-Blower Act, West Virginia Code §§ 6C-1-1 to -1-

8. With respect to Count I, Ms. Swisher’s complaint alleges:

2

This case stands for the following proposition:

The rule that an employer has an absolute right to discharge an at will

employee must be tempered by the principle that where the employer’s

motivation for the discharge is to contravene some substantial public policy

principle, then the employer may be liable to the employee for damages

occasioned by this discharge.

Harless, at 116, 246 S.E.2d at 271, syl.

2

14. Based upon information and belief [Ms. Swisher] was wrongfully

retaliated against and ultimately wrongfully terminated in retaliation for

reporting concerns of patient safety due to the management of [the Hospital].

15. Even at will employees may recover for wrongful termination and

retaliatory treatment [“]where the treatment was motivated by an intention to

contravene some substantial public policy principle, then the employer may

be liable to the employee for damages occasioned by this discharge[”].

Harless v. First Nat’l Bank [in Fairmont], [192] W. Va. 116, 246 S.E.2d 270

(1978).

16. There is a clearly established public policy in West Virginia regarding

ensuring a level of quality when treating patients to not only protect the safety

of the patients but the nurses as well.

17. Further, there is a clear established public policy by West Virginia

Supreme Court that [“]it is the public policy of this state and otherwise

unlawful to discriminate or retaliate against an employee for reporting acts

of discrimination and/or harassment which are occurring in the workplace[”].

Burke v. Wetzel Cnty. Comm ‘n, 240 W. Va. 709, 728, 815 S.E.2d 520, 539

(2018).

18. There is a clear established public policy that provides that [“]no

employer may discharge or harass an employee because the employee, acting

on her own volition makes a good faith report to the employer or appropriate

authority an instance of wrongdoing[”]. West Virginia Code §6C-1-3(a)

[2020]. As was done while reporting patient safety concerns.

In Count II, Ms. Swisher asserted a claim for wrongful termination without citing

the statutory or common law authority upon which her cause of action is based. Rather, the

complaint simply alleges that “[Ms.] Swisher’s termination was based at least in part on

her reports of concern for patient safety. Thus, [Ms. Swisher] was terminated wrongfully

and in violation of West Virginia law”; further, “[Ms.] Swisher did not commit any separate

dischargeable offense and any contrary allegation is merely a pretext.”

The Hospital interpreted Count II as implicating the West Virginia Patient Safety

Act, West Virginia Code §§ 16-39-1 to -8 (the “WVPSA”). On March 31, 2025, the

Hospital filed its motion for summary judgment. The motion made two basic contentions:

first, Ms. Swisher could not establish her retaliation claim because she failed to establish a

substantial public policy; and second, Ms. Swisher could not maintain her wrongful

termination claim under the West Virginia Patient Safety Act because her termination was

not the result of patient advocacy, but rather, the Hospital had a legitimate and non-

3

retaliatory basis to terminate Ms. Swisher’s employment, and that basis was not a pretext

for retaliation.

In response, Ms. Swisher filed a motion on April 8, 2025, asking the circuit court to

take judicial notice of the WVPSA, and to find that it represents a substantial public policy

under Harless. The Hospital responded in opposition to the motion on April 11, 2025,

arguing that Ms. Swisher was attempting to use judicial notice to retroactively amend her

complaint and assert a WVPSA claim for the first time. On April 14, 2025, Ms. Swisher

filed her response in opposition to summary judgment wherein she claimed for the first

time that her claims were brought under the WVPSA, and averred that it was an established

public policy under Harless. To support her position, Ms. Swisher claimed that she was

terminated in retaliation for submitting her February 6, 2022, incident report, and that the

WVPSA shielded her from termination because her report was a good faith report of

wrongdoing under the statute. See W. Va. Code § 16-39-4 (2001).3 According to Ms.

Swisher, she reported that the Hospital: did not adequately train its staff to protect health

care workers from assailants on the premises; had improper visitation policies; and

permitted a visitor on the premises that was a risk to others (claiming that when she was

assaulted on February 5, 2022, she was attempting to limit the number of visitors in the

area in response to the COVID-19 pandemic).

The circuit court held a pre-trial hearing on April 15, 2025, at which time the parties

agreed that Ms. Swisher could not maintain her claims based upon the state’s whistle-

blower law because, as a private entity, the Hospital does not meet the definition of a

“public” employer as defined by West Virginia Code § 6C-1-2 (1988). Ms. Swisher

3

This portion of the WVPSA provides as follows:

(a) No person may retaliate or discriminate in any manner against any health

care worker because the worker, or any person acting on behalf of the

worker:

(1) Makes a good faith report, or is about to report, verbally or in writing, to

the health care entity or appropriate authority an instance of wrongdoing

or waste.

(2) Advocated on behalf of a patient or patients with respect to the care,

services or conditions of a health care entity;

(3) Initiated, cooperated or otherwise participated in any investigation or

proceeding of any governmental entity relating to the care, services or

conditions of a health care entity.

(b) A health care worker with respect to the conduct described is acting in

good faith if the health care worker reasonably believes:

(1) That the information is true; and

(2) Constitutes waste or wrongdoing as defined in section three of this article.

4

conceded that Count II was also a Harless claim, and indicated she was relying upon the

WVPSA to support both counts of her complaint. The court heard the parties’ arguments

regarding summary judgment and at the conclusion of the hearing, the court took the matter

under advisement.

On April 24, 2025, the circuit court entered the order presently on appeal. The

primary issue before the court was whether under the facts of this case, the WVPSA was a

substantial public policy, which insulated Ms. Swisher’s claims from the Hospital’s motion

for summary judgment.4 On this issue, the circuit court found that under the WVPSA,

wrongdoing is narrowly defined as “a violation of any law, rule, regulation, or generally

recognized professional or clinical standard that relates to care, services, or conditions and

which potentially endangers one or more patients or workers or the public.” W. Va. Code

§ 16-39-3 (2022). The court found it telling that the statute setting forth the WVPSA’s

legislative findings and purpose was repealed by the Legislature prior to Ms. Swisher’s

termination. See W. Va. Code § 16-39-2, repealed by, Acts 2021, c. 220, eff. April 10,

2021. The court also found it significant that during the same legislative session, West

Virginia Code § 16-39-8 (2021) was adopted to address patient visitation in health care

facilities during a declared public health state of emergency for a contagious disease.

Particularly, the circuit court cited partial language from subsection (a) of the statute, which

provides “[i]f the patient’s death is imminent, the health care facility shall allow visitation

upon request at any time and frequency.” W. Va. Code § 16-39-8(a).

Next, the circuit court found that the Supreme Court of Appeals of West Virginia

(“SCAWV”) has held: “A determination of the existence of public policy in West Virginia

is a question of law, rather than a question of fact for a jury.” Syl. Pt. 2, Feliciano v. 7-

Eleven, Inc., 210 W. Va. 740, 559 S.E.2d 713 (2001) (quoting Syl. Pt. 1., Cordle v. General

Hugh Mercer Corp., 174 W. Va. 321, 325 S.E.2d 111 (1984)). The court also found that

“[t]o identify the sources of public policy for purposes of determining whether a retaliatory

discharge has occurred, [courts] look to established precepts in our constitution, legislative

enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel

v. Tri-Cities Health Servs., 188 W. Va. 371, 424 S.E.2d 606 (1992). It also recognized that

“courts should proceed cautiously if called upon to declare public policy absent some prior

legislative or judicial expression on the subject. . . . Nevertheless, despite the broad power

vested in the courts to determine public policy, we must exercise restraint when we use it.”

Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 141, 506 S.E.2d 578, 584

(1998) (citations omitted).

As further guidance, the circuit court cited language from in Feliciano, in which the

4

The circuit court’s order also noted Ms. Swisher’s acknowledgement that she could

not rely upon our state’s whistle-blower law to support her claims and included limited

findings regarding its inapplicability to the present case. Given Ms. Swisher’s concession

below, we do not need to include a summary of those findings in this appeal.

5

SCAWV stated:

[W]e find the following elements . . . to be particularly instructive to a

determination of whether an employee has successfully presented a claim of

relief for wrongful discharge in contravention of substantial public policy:

1. Whether a clear public policy existed and was manifested

in a state or federal constitution, statute or administrative

regulation, or in the common law (the clarity element).

2. Whether dismissing employees under circumstances like

those involved in the plaintiff’s dismissal would jeopardize

the public policy (the jeopardy element).

3. Whether the plaintiff’s dismissal was motivated by conduct

related to the public policy (the causation element).

4. Whether the employer lacked overriding legitimate

business justification for the dismissal (the overriding

justification element).

Feliciano, at 750, 559 S.E.2d at 723 (citation modified).

Applying these principles, the circuit court made two key determinations. First, the

court concluded that Ms. Swisher’s reference to “patient safety” in her complaint did not

meet the standard for identifying a public policy. See Frohnapfel v. ArcelorMittal USA

LLC, 235 W. Va. 165, 170-71, 772 S.E.2d 350, 355-56 (2015) (quotations and citations

omitted) (stating that Harless claims require “more than simply raising the spectrum of a

potentially governing law. The mere citation of a statutory provision is not sufficient to

state a cause of action for retaliatory discharge without a showing that the discharge

violated the public policy that the cited provision clearly mandates.”).

Second, the court found that the WVPSA cannot satisfy the clarity or jeopardy

elements of Feliciano, and as a result, the statutory scheme does not establish public policy

under West Virginia law. With respect to the clarity element, the court found Ms. Swisher’s

reliance on Camden-Clark Memorial Hospital Corp. v. Tuan Nguyen, 240 W. Va. 76, 807

S.E.2d 747 (2017) to be misplaced. Specifically, the court recognized that while Camden-

Clark and the present case each involve allegations of retaliation by a former employer-

hospital for reporting patient safety concerns under West Virginia Code § 16-39-4, they

are distinguishable for the purposes of a Feliciano analysis because Camden-Clark’s public

policy argument was predicated upon the legislative purpose of the WVPSA under West

Virginia Code § 16-39-2, which no longer exists. Likewise, the court found Ms. Swisher’s

contention that the February 5, 2022, incident was related to her patient safety concerns

6

regarding the COVID-19 pandemic was undermined by the Legislature’s adoption of West

Virginia § 16-39-8. Moreover, the court determined that Ms. Swisher did not offer any

form of authority listed by West Virginia Code § 16-39-3 to establish that her good faith

complaint of physical assault by a Hospital visitor was a complaint of wrongdoing within

the meaning of the WVPSA. Thus, the circuit court concluded that the clarity element

could not be met because there is no clear public policy within the WVPSA that prohibits

at-will employees from being discharged for complaining that they were assaulted by a

third party, and further, the SCAWV has held on numerous occasions that criminal statutes

may not be used as the basis for Harless claims. See, e.g., Swears v. R.M. Roach & Sons,

Inc., 225 W. Va. 699, 696 S.E.2d 1 (2010); Blanda v. Martin & Seibert, L.C., 242 W. Va.

552, 836 S.E.2d 519 (2019); Jarrell v. Frontier W. Va., Inc., 249 W. Va. 335, 895 S.E.2d

190 (2023).

The circuit court relied upon similar reasoning regarding the jeopardy element.

Here, the court reiterated that Ms. Swisher failed to establish a wrongdoing as defined by

the WVPSA. On this point, the court observed that Ms. Swisher’s incident report did not

expressly allege any wrongdoing as defined by statute, but rather, her complaint stated that

she was pushed by a Hospital visitor who was attempting to visit their dying parent. The

court found that there was nothing in the record to support Ms. Swisher’s position or to

overcome the countervailing language of West Virginia Code § 16-39-8, and that the court

was unwilling to stretch the WVPSA to encompass her claims. As such, the court

concluded that Ms. Swisher’s termination would not otherwise jeopardize the protections

afforded other health care workers who reported recognized acts of wrongdoing under the

WVPSA.

Thereafter, the court granted the Hospital summary judgment and dismissed the case

with prejudice. This appeal followed.

In West Virginia, it is well established that our standard of review in this matter is

de novo. Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) (“A circuit

court’s entry of summary judgment is reviewed de novo.”). In conducting a de novo review,

this Court applies the same standard for granting summary judgment that a circuit court

must apply, and that standard states, “[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.” United Bank, Inc. v. Blosser,

218 W. Va. 378, 383, 624 S.E.2d 815, 820 (2005) (quoting Syl. Pt. 2, Painter, 192 W. Va.

at 190, 451 S.E.2d at 756). “Summary judgment is appropriate if, from the totality of the

evidence presented . . . the nonmoving party has failed to make a sufficient showing on an

essential element of the case that it has the burden to prove.” Syl. Pt. 2, Williams v.

Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). “[T]he party opposing

summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla

of evidence’ and must produce evidence sufficient for a reasonable jury to find in a

nonmoving party’s favor.” Id. at 60, 459 S.E.2d at 337 (quotations and citations omitted).

7

On appeal, Ms. Swisher raises three assignments of error to challenge the circuit

court’s summary judgment order. Upon review, we find it appropriate to consolidate and

restate those arguments for the purposes of this appeal. See Tudor’s Biscuit World of Am.

v. Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (stating the general

proposition that related assignments of error may be consolidated for ruling); Jacquelyn F.

v. Andrea R., No. 16-0585, 2017 WL 2608425, at *1 n.2 (W. Va. June 16, 2017)

(memorandum decision) (restating assignments of error where they involve clearly related

issues); Perry v. Ravenscroft, No. 24-ICA-134, 2024 WL 5002991, at *3 (W. Va. Ct. App.

Dec. 6, 2024) (memorandum decision) (consolidating and restating petitioner’s

assignments of error on appeal). Restated, Ms. Swisher contends that the circuit court erred

in finding that she could not rely upon the WVPSA as the substantial public policy to

support her Harless claim. Ms. Swisher also contends that the court’s entry of summary

judgment deprived her of her right to a jury trial.

Ms. Swisher contends that the circuit court erred by finding that the WVPSA was

not a substantial public policy for two reasons: first, she asserts that her complaint properly

pleaded a Harless cause of action; and second, the circuit court failed to properly construe

the meaning of the term wrongdoing under the statute, and as a result, mistakenly

concluded that the clarity and jeopardy elements were not met under Feliciano. For the

reasons set forth below, we are not persuaded by Ms. Swisher’s arguments.

According to Ms. Swisher, her complaint’s recurrent reference to the term “patient

safety” was sufficient to establish her reliance upon the WVPSA; thus, the circuit court

erred when it found that her complaint did not sufficiently plead a public policy. However,

as we have previously established, Ms. Swisher’s complaint only references patient safety

in passing, without any citation to supporting authority. Case law clearly states that such

generalized statements do not raise Harless claims. See Frohnapfel, at 170-71, 772 S.E.2d

at 355-56. Similarly, on appeal, Ms. Swisher’s argument on this issue is addressed

summarily, without citation to supporting authority. “Although we liberally construe briefs

in determining issues presented for review, issues which are not raised, and those

mentioned only in passing but are not supported with pertinent authority, are not considered

on appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996). Further,

Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides that “[t]he

argument must contain appropriate and specific citations to the record on appeal, including

citations that pinpoint when and how the issues in the assignments of error were presented

to the lower tribunal” and that “[t]he Intermediate Court . . . may disregard errors that are

not adequately supported by specific references to the record on appeal.” The SCAWV has

further noted that “[a] skeletal argument, really nothing more than an assertion, does not

preserve a claim[.]” State v. Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39

(2011). As such, we conclude that Ms. Swisher is not entitled to relief on this issue.

8

In a parallel argument, she also contends that because the SCAWV has previously

found that the WVPSA may be used to support Harless claims, the Legislature’s repeal of

West Virginia Code § 16-39-2 does not subvert the WVPSA’s status as a substantial public

policy. We are not persuaded by this argument. While Ms. Swisher cites the SCAWV’s

decision in Camden-Clark, which concluded that the WVPSA could support a Harless

claim, all those decisions relied upon the legislative purpose of the WVPSA under West

Virginia Code § 16-39-2 to reach those determinations. The circuit court determined that

cases like Camden-Clark could no longer be used to establish the WVPSA as a public

policy under Harless because those cases all antedated the repeal of the statute in 2021.

“The general rule is, that when an act of the Legislature is repealed without a saving clause,

that it must be considered, except as to transactions passed and closed, as if it had never

existed.” Syl. Pt. 2, Jefferson Cnty Citizens for Econ. Pres. v. Cnty. Comm’n of Jefferson

Cnty., 224 W. Va. 365, 686 S.E.2d 16 (2009) (quoting Chesapeake and Potomac Co. v.

State Tax Dep’t, 161 W. Va. 77, 83, 239 S.E.2d 918, 922 (1977) (internal quotations and

citations omitted)). In this case, the WVPSA contains no savings clause and, thus, as the

circuit court aptly observed, Ms. Swisher could not establish the WVPSA as a public policy

through earlier SCAWV decisions, which were issued prior to the WVPSA’s 2021

amendments.

Next, Ms. Swisher maintains that the circuit court’s Feliciano analysis was flawed

due to its narrow construction of the term wrongdoing. At its crux, Ms. Swisher’s

contention is that the assault of a health care worker by a third party qualifies as a

wrongdoing under the statute. In support, she reiterates her arguments regarding her

references to patient safety in her complaint and prior SCAWV decisions regarding the

WVPSA. She also restates her argument from summary judgment that her incident report

meets the statutory definition of wrongdoing because it reported issues related to such

things as Hospital policies, training, and staff protection. Notably, however, Ms. Swisher’s

argument contains no citation to the record, let alone specific language from the incident

report to support her claims. See W. Va. R. App. P. 10(c)(7). Rather, Ms. Swisher’s

argument is that these wrongdoings should be inferred from the nature of the incident

report, or alternatively, her subjective interpretation of the facts should subvert the circuit

court’s findings on this issue. However, at no point during the entirety of this case has Ms.

Swisher ever contended that there was ambiguity in the statutory definition of wrongdoing

under West Virginia Code § 16-39-3. Further, in support of this argument on appeal, Ms.

Swisher merely offers generalized statements and hypotheticals to suggest that the circuit

court misconstrued the term and that the Feliciano factors are easily met. This is not

sufficient to establish error or overcome her burden at summary judgment.5

5

Although Ms. Swisher raised a common law Harless claim and relied on the

WVPSA as the relevant public policy, her failure to produce evidence that her February 6,

2022, report was a good faith report of “wrongdoing” as defined in West Virginia Code §

16-39-3 would also have been fatal to a statutory WVPSA retaliation claim filed under

West Virginia Code § 16-39-6(a).

9

In its order, the circuit court set forth factual findings, established precedent, and

cited statutory authority applicable to the legal issue presented at summary judgment. After

reconciling the matter, the court determined that the Hospital’s motion was properly

supported by affirmative evidence establishing that there was no genuine issue of material

fact. Subsequently, the burden shifted to Ms. Swisher to oppose summary judgment

through more than a mere scintilla of evidence. To meet this burden, the SCAWV has

stated:

If the moving party makes a properly supported motion for summary

judgment and can show by affirmative evidence that there is no genuine issue

of a material fact, the burden of production shifts to the nonmoving party

who must either (1) rehabilitate the evidence attacked by the moving party,

(2) produce additional evidence showing the existence of a genuine issue for

trial, or (3) submit an affidavit explaining why further discovery is necessary

as provided in Rule 56(f)6 of the West Virginia Rules of Civil Procedure.

Williams, 194 W. Va. at 52, 459 S.E.2d at 329, syl. pt. 3. The nonmoving party must also

present evidence that contradicts the showing of the moving party by pointing to specific

facts demonstrating that there is a trial-worthy issue which is not only a genuine issue but

also an issue that involves a material fact. Id. at 60, 459 S.E.2d at 337 (emphasis added).

Moreover, the nonmoving party cannot create a genuine issue of material fact through mere

speculation or building of one inference upon another. Id. at 61 n.14, 459 S.E.2d at 338

n.14.

Thus, to resist the Hospital’s motion, Ms. Swisher was required to either rehabilitate

the evidence, produce additional evidence showing a genuine issue of material fact, or file

an affidavit for further discovery. However, Ms. Swisher failed to do so. Specifically, there

is no affidavit in the record from Ms. Swisher seeking further discovery, and her response

in opposition to summary judgment neither rehabilitates the evidence, nor produces

additional evidence to sufficiently establish a genuine issue of material fact.

Rather, in opposition to summary judgment, Ms. Swisher simply offers the

overarching contention that her reporting the acts of a third party is protected by established

public policy under the WVPSA. See Williams, 194 W. Va. at 61, 459 S.E.2d at 338

(citations omitted) (“[T]he mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.”); Harbaugh v. Coffinbarger,

209 W. Va. 57, 62, 543 S.E.2d 338, 343 (2000) (“[T]he party opposing the summary

judgment motion ‘must do more than simply show that there is some metaphysical doubt

as to the material facts.’ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574

6

We note that under the 2025 amendments to the West Virginia Rules of Civil

Procedure, the former Rule 56(f) has been renumbered as Rule 56(d).

10

(1986).”); Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W. Va. 692,

700, 474 S.E.2d 872, 880 (1996) (“Rule 56 does not impose upon the circuit court a duty

to sift through the record in search of evidence to support a party’s opposition to summary

judgment. Nor is it our duty to do so on appeal.”). Here, there is no indication from the four

corners of the court’s order that the circuit court did not afford West Virginia Code § 16-

39-3, or any other provision of the WVPSA its plain and ordinary meaning when it

determined that there was no genuine issue of material fact in this case. See Syl. Pt. 3,

Nicewarner v. City of Morgantown, 249 W. Va. 120, 894 S.E.2d 902 (2023) (citation

omitted) (“When a statute is clear and unambiguous and the legislative intent is plain, the

statute should not be interpreted by the courts, and in such case[,] it is the duty of the courts

not to construe but to apply the statute.”); Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714,

172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain

meaning is to be accepted and applied without resort to interpretation.”). Further, as

explained above, Ms. Swisher’s differing application of the law to the facts of this case is

not sufficient to withstand the Hospital’s motion for summary judgment. Therefore, we

cannot conclude that the circuit court erred in its determination that summary judgment

was appropriate in this case.

Lastly, Ms. Swisher asserts that the circuit court deprived her of her right to a jury

trial by improperly substituting its judgment regarding the facts of the case for that of the

jury by granting summary judgment on her claims. We disagree. As the SCAWV has held:

The summary judgment procedure provided by Rule 56 of the West Virginia

Rules of Civil Procedure does not infringe upon the constitutional right of a

party to a trial by jury; it is not a substitute for a trial, or a trial either by a

jury or by the court of an issue of fact, but is a determination that, as a matter

of law, there is no issue of fact to be tried.

Syl. Pt. 7, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d

770 (1963) (citations omitted). While Ms. Swisher’s complaint made a demand for a jury

trial, she was not deprived of her constitutional rights by the court’s April 24, 2025, order.

Here, having already determined that the circuit court did not err in determining, as a matter

of law, that there is no issue of fact to be tried for Ms. Swisher’s claims, the circuit court

did not deprive Ms. Swisher of her right to a jury trial. As such, we affirm the circuit court’s

entry of summary judgment.

Accordingly, we affirm the circuit court’s April 24, 2025, order.

Affirmed.

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ISSUED: December 22, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen

Judge Daniel W. Greear

Judge S. Ryan White

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