Sasson v. Gilbert Welytok et al

Filing 4

ORDER signed by Judge Rudolph T Randa on 09/23/2011 granting 2 Motion for Leave to Proceed in forma pauperis. The United States Marshal must SERVE a copy of the complaint and the attachment, the summons, this Decision and Order, and the 04/08/2011, Decision and Order upon the Defendants pursuant to Federal Rule of Civil Procedure 4. (cc: via US Mail to Ralph Sasson) (Koll, J)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RALPH SASSON;
Plaintiff,
v.

Case No. 11-C-0835

JILL GILBERT WELYTOK;
and ABSOLUTE TECHNOLOGIES
GROUP, LLC;
Defendants.

DECISION AND ORDER

The Plaintiff, Ralph Sasson (“Sasson”), filed a pro se Complaint against his
former employers, Absolute Technologies Group, LLC (“Absolute”) and Jill Gilbert Welytok
(“Welytok”), the attorney owner and president of Absolute, who made the decisions at issue
in this action. Sasson seeks leave to proceed in forma pauperis.
Sasson’s Complaint alleges that from August 15, 2011, through August 26,
2011, he was employed as a paralegal by the Defendants and that Absolute is engaged in the
practice of intellectual property law, a business and industry affecting commerce within the
meaning of 29 U.S.C. § 203(s).

The Complaint alleges that, while employed by the

Defendants, Sasson worked far in excess of 40 hours per week; however, he was not

compensated a rate of time and a half for the hours that he worked in excess of 40 hours as
required by the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. The Complaint
further alleges that, on August 26, 2011, when Sasson demanded payment for the overtime
hours at the rate specified by the FLSA, his employment was terminated.
The Complaint alleges that the Defendants violated the FLSA by failure to pay
overtime (first cause of action) and by their retaliatory termination of his employment (third
cause of action), and that they violated the corollary Wisconsin state law regarding overtime
wages, Wis. Stats. §§ 103.03, 103.02, and Wis. Admin. Code § DWD 274.03 (second cause
of action). Sections 1331 and 1367 of Title 28 of the United States Code, respectively, afford
federal question jurisdiction over claims arising under the FLSA, and supplemental
jurisdiction over the Wisconsin state law wage law claim.
In deciding whether Sasson may proceed in forma pauperis, the first
determination for the Court is whether Sasson is unable to pay the costs of commencing this
action. Sasson is unemployed, has no assets, and has a bank account balance of -73.31 dollars.
The only monthly expense Sasson lists is rental payment of $350. Based on the information
provided, Sasson has established that he cannot pay the $350 fee for filing this action.
The second determination to be made in considering a request to proceed in
forma pauperis is whether the action is frivolous, malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a defendant who is immune from such
relief, see 28 U.S.C. §§ 1915(a)(1) & (e)(2). The Court is obligated to give a plaintiff’s pro

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se allegations, however inartfully pleaded, a liberal construction. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972).
Under the FLSA, an employer must pay its employees overtime wages (150%
of the employee’s hourly wage) for each hour worked in excess of 40 hours a week. 29 U.S.C.
§ 207(a)(1). While there are exceptions to the general requirement, at this juncture
Sasson has alleged an arguable FLSA claim for unpaid overtime wages.
The FLSA also contains an anti-retaliation provision providing that it is unlawful
for an employer “to discharge . . . any employee because such employee has filed any
complaint or instituted or caused to be instituted any proceeding under [the FLSA].” 29
U.S.C. § 215(a)(3). Federal courts have interpreted § 215(a)(3) very broadly. See Crowley
v. Pace Suburban Bus Div. of Reg’l Transp. Auth., 938 F.2d 797, 798 n. 3 (7th Cir. 1991); see
also Ergo v. Int’l Merch. Servs., Inc., 519 F.Supp. 2d 765, 778 (N.D. Ill. 2007) (collecting
cases). A recent Supreme Court decision held that oral complaints made by an employee to
his supervisor are protected expressions. See Kasten v. St.-Gobain Performance Plastics
Corp.,

U.S.

,

, 131 S.Ct. 1325, 1336 (2011). At this juncture of the proceedings,

the Court concludes Sasson has stated an arguable claim of retaliation under the FLSA.
Sections 103.02 and 103.025 of the Wisconsin Statutes contain provisions
regarding overtime pay for employees and require payment of “at least 1.5 times the
employee’s regular rate of pay.” Sections 109.01(3) and 109.03(5) of the Wisconsin Statutes
create a private cause of action to recover unpaid wages from an employer. See German v.

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Wis. Dep’t of Transp., 612 N.W.2d 50, 54 (Wis. 2000) (holding employees can bring an action
for wages in the trial courts under Chapter 109 of the Wisconsin Statutes and the
Administrative Code); DeKeyser v. Thyssenkrupp Waupaca, Inc., 589 F.Supp.2d 1026, 103435 (E.D. Wis. 2008) (holding plaintiffs stated a claim for unpaid overtime pay under Chapter
109 of the Wisconsin Statutes) ; Raffaelli v. Advo, Inc., 218 F.Supp. 2d. 1022, 1025 (E.D. Wis.
2002). The Complaint alleges an arguable claim for violation of the Wisconsin statutory
overtime wage laws.
Based on the foregoing, Sasson’s Complaint states three arguable causes of
action against the Defendants . Therefore, he will be allowed to proceed in forma pauperis
on his Complaint.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Sasson’s motion for leave to proceed in forma pauperis (Docket No. 2) is
GRANTED.
The United States Marshal must SERVE a copy of the complaint and the
attachment, the summons, this Decision and Order, and the April 8, 2011, Decision and Order
upon the Defendants pursuant to Federal Rule of Civil Procedure 4. Sasson is advised that
Congress requires the United States Marshals Service to charge for making or attempting such
service. 28 U.S.C. § 1921(a). The fee for waiver-of-service packages is $8.00 per item. The
full fee schedule is provided at 28 C.F.R. § 0.114(a)(2), (a)(3). Although Congress requires

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the Court to order service by the United States Marshals Service because in forma pauperis
plaintiffs are unable to pay the filing fee, it has not made any provision for these fees to be
waived either by the Court or by the United States Marshals Service.
Sasson is NOTIFIED that from now on, he is required, under Federal Rules of
Civil Procedure Rule 5(a) to send a copy of every paper or document filed with the Court to
the opposing parties or counsel. For any opposing party who appears by counsel, thereafter,
Sasson must send a copy of every paper or document filed with the Court to counsel for that
party. Fed. R. Civ. P. 5(b).
Sasson should also retain a personal copy of each document. If Sasson does not
have access to a photocopy machine, he may send out identical handwritten or typed copies
of any documents. The Court may disregard any papers or documents which do not indicate
that a copy has been sent to the opposing party or that party’s attorney.
Sasson is further advised that failure to make a timely submission may result in
the dismissal of this action for failure to prosecute.

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In addition, the parties must notify the Clerk of Court’s office of any change of
address. Failure to do so could result in orders or other information not being timely delivered,
Dated at Milwaukee, Wisconsin, this 23rd day of September , 2011.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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