WISEE v. WIS (2026)

The plaintiff commenced this action in September 2024. The plaintiff initially asserted claims against her former employer and three of its employees for alleged discrimination in connection with her employment. The plaintiff later expanded her claims to include two additional employees as defendants in this action. The plaintiff further commenced several additional actions in other counties against the same individual defendants named in this action. The complaint filed against one of these individual defendants in Albany County was dismissed. The remaining claims made against the other individual defendants in the other counties were ultimately consolidated into this action. Another related action was pursued by the plaintiff against a State Trooper in Rensselaer County, although that action was dismissed.

Numerous pleadings have been filed in this action. In addition, there have been ten motions filed as well. While a full recitation of each prior motion will not be discussed, the Court notes that it previously declined to reject the plaintiff's pleadings (Motion No. 1), grant a default judgment against the defendants (Motion No. 2), and summarily adjudicate the merits of the claims without affording the plaintiff a full and fair opportunity to engage in discovery (Motion No. 3). As the plaintiff has since filed a note of issue, the Court will now consider whether summary judgment should be granted pursuant to CPLR 3212, as requested by the defendants (Motion No. 9), or whether the case should be submitted to a jury, as requested by the plaintiff (Motion No. 10).

The first part of the defendants' motion for summary judgment is based on the name used by the plaintiff to sue. Rather than suing in her own individual name, the plaintiff opted instead to sue as "WISEE" and to assert claims as a "private attorney general." The defendants contend that the named plaintiff is nothing more than a fictitious entity and that it lacks authority, capacity, and standing to assert any claims in this action on behalf of itself and others.

The Court agrees that the named plaintiff, a fictitious entity, should not be pursuing claims on behalf of itself or anyone else, especially without legal counsel, and that no basis exists in this case to permit the claims to proceed by a "private attorney general." The Court, however, declines to summarily dismiss the entire case on this ground. Rather, being mindful that the plaintiff's creator (Shirley He) represents herself and used Google to conduct her legal research, the Court finds it more appropriate to consider the merits of those claims asserted in this action which are personal to the plaintiff's creator (see CPLR 3026; 3025). Indeed, it has been obvious in this action from the case filings and appearances that the plaintiff's creator filed this action to seek redress for claims personal to herself. Among other things, the complaint refers to the plaintiff as "WISEE Shirley He," was signed by her ("Shirley He, Plaintiff"), and makes numerous allegations personal to her, such as the first sentence in the March 2025 complaint, which alleges that "The plaintiff (color Asian) was a part-time hourly rate Top Gun counter and an inventory leader and the most qualified WIS inventory employee " As such, the consideration of the merits of these claims will not cause the defendants any surprise or prejudice.

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.

Further, the plaintiff's claim for intentional infliction of emotional distress is essentially a restatement of her wrongful discharge claim, and in any event, the plaintiff does not allege the type of extreme and outrageous conduct required to make out a prima facie case for that tort (see Sommerville v. R.C.I., 257 AD2d 884, 885-886 [3d Dept 1999]).

The Court has considered the remaining claims and allegations in the plaintiff's pleadings and similarly finds that they should be dismissed as well.

Accordingly, it is

ORDERED, that the defendants' motion seeking summary judgment dismissing the complaint (Motion No. 9) is GRANTED and the complaint filed in this action, as well as those portions of the complaints consolidated into this action from other counties, are hereby DISMISSED, and, as such, the complaints and claims against all the defendants named in this action are hereby DISMISSED; and it is further

ORDERED, that the plaintiff's cross motion seeking "a jury trial [and] more" (Motion No. 10) is hereby DENIED.

This shall constitute the Decision and Order of the Court. The Court is hereby uploading the original decision into the NYSCEF system for filing and entry. The Court further directs the defendants to serve the plaintiff with a copy of this Decision and Order, together with notice of entry.

So-Ordered.

Dated: June 10, 2026

at Ballston Spa, New York

HON. RICHARD A. KUPFERMAN

Justice Supreme Court

Papers Considered:

NYSCEF Doc. Nos.: 1-163

Richard A. Kupferman, J.