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Ralph Sasson v. Jill Gilbert Welytok; and Absolute Technologies Group

September 23, 2011

RALPH SASSON; PLAINTIFF,
v.
JILL GILBERT WELYTOK; AND ABSOLUTE TECHNOLOGIES GROUP, LLC; DEFENDANTS.



The opinion of the court was delivered by: Hon. Rudolph T. Randa U.S. District Judge

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 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 ...


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