In Wisee v. WIS Int’l, 89 Misc. 3d 1213(A) (N.Y. Sup. Ct. 2026), the court granted defendants’ motion for summary judgment on plaintiff’s employment discrimination and retaliation claims.
From the decision:
Turning now to the merits of the claims, the plaintiff alleges that she was wrongfully terminated and discriminated against in connection with her employment, as well as her attempts to be reemployed by the same corporate defendant. As far as can be understood, the plaintiff alleges in the complaint that she was employed as an inventory counter for the defendant corporation. On September 6, 2024, she was performing her inventory-counting services at a CVS pharmacy in Queensbury. When she refused to count certain items, the area manager allegedly complained to the district manager about the plaintiff’s behavior, and the plaintiff was placed on suspension pending an internal investigation by the defendant corporate entity. When the plaintiff refused to leave the premises, law enforcement was called for assistance. The responding troopers facilitated the return of company property back to the plaintiff’s manager and escorted the plaintiff off the premises.
The plaintiff does not dispute that she refused to count certain items and that the police had to escort her off the premises. Rather, she believes that her manager(s) and/or coworker(s) attempted to slow her down (“kill her performance”) by asking her to count items that take more time. She asserts that she was an elite counter and that she did not want to count items that slowed her down and interfered with her counting speed and numbers. She believes that the directives given to her violated company policy because they would have caused inefficiency and prolonged inventory counting time. She further refers to her co-workers and managers as “lazy,” “racist,” and “afraid of the black and white,” among other things.
The plaintiff alleges that the defendants’ actions amounted to a violation of the Penal Law. The plaintiff, however, is not the proper party to assert these claims. In any event, even if the plaintiff could allege violations of the penal law in a civil action, the allegations are based on an unsubstantiated conspiracy about the defendants attempting to “kill her performance,” which is alleged in a generalized and incomprehensible manner. It is impossible to infer that any conduct of the defendants equated to a crime, or that the defendants committed any common law civil tort for that matter.
Further, with respect to the plaintiff’s Title VII claims, the record indicates that the plaintiff failed to exhaust her administrative remedies prior to asserting these claims. As such, these claims must be dismissed (see Nordenstam v State Univ. of NY Coll. of Envtl. Science & Forestry, 184 AD3d 1157, 1160 [4th Dept 2020]; Romney v NY City Transit Auth., 294 AD2d 481, 482 [2d Dept 2002]; Patrowich v Chemical Bank, 98 AD2d 318, 323-324 [1st Dept 1984], affd 63 NY2d 541 [1984]; see also Miller v International Telephone & Telegraph Corp., 755 F2d 20, 22-23 [2d Cir 1985]; Hladki v. Jeffrey’s Consolidated, Ltd., 652 F Supp 388, 392 [EDNY 1987]).
The Court further agrees with the defendants that they have met their initial burden on the motion with respect to the retaliation-based claims under New York Labor Law §§ 215 and 740, as well as the race-based discrimination claim under Executive Law § 296. The Court further finds that the plaintiff has failed to create an issue of fact in opposition. Again, the circumstances indicate that the plaintiff was terminated for insubordination.
While she attempts to explain away her behavior, the plaintiff’s allegations fail to demonstrate any retaliation or discriminatory conduct on the part of the defendants. On the contrary, the plaintiff relies on conclusory statements and hyperbole rather than submitting any competent evidence to support a legitimate claim under these provisions.
The court also dismissed plaintiff’s intentional infliction of emotional distress claim, which it characterized as essentially a restatement of her wrongful discharge claim.