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SHERRY v. PROTECTION

November 24, 1997

JOHN SHERRY, Plaintiff,
v.
PROTECTION, INC., an Illinois corporation, AFFILIATED PROTECTIVE SERVICES, INC., an Illinois corporation, and CHARLES T. LAWS, Defendants.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons discussed hereafter, the motion is denied.

 I. BACKGROUND

 Plaintiff John Sherry completed an application for employment as a security officer with defendant Protection Inc. on September 26, 1995. He was hired on or near that same day. He was ultimately promoted to the position of "Chief of Uniformed Security."

 In March of 1996, Sherry's father was diagnosed with terminal liver cancer. Consequently, Sherry requested leave under the Family and Medical Leave Act (FMLA) to care for his father. His request was made to defendant Charles Laws -- Chief Executive Officer of Protection Inc. -- and defendant Affiliated Protective Services Inc. ("APS"). Sherry alleges that his first two requests made on March 4, 1997 were denied, but his third request on April 10, 1997 was granted. Laws granted him five weeks of leave.

 Sherry's father died on April 30, 1997. Sherry returned to work on May 13, 1997. Upon his return to work, Sherry alleges that he was demoted from the highest ranking employee to a security officer. Further, due to intolerable working conditions, Sherry claims that he was forced to resign.

 Sherry initiated this action against Protection Inc., APS, and Laws alleging in four separate counts violations of the FMLA. *fn1"

 II. DISCUSSION

 Defendants seek summary judgment for a variety of reason: APS argues that it should not remain in this action because it was not Sherry's employer; all defendants attack the validity of Sherry's FMLA claims for a number of reasons. Following a statement of the summary judgment standard of review, the Court will address defendants' arguments in turn.

 A. Summary Judgment - Standard of Review

 Under FED. R. CIV. P. 56(c), summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir. 1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987).

 B. Defendants' Arguments

 1. Was APS Sherry's employer?

 Sherry's FMLA claims are brought pursuant to 29 U.S.C. § 2615(a). Liability under § 2615(a) extends to an "employer." APS argues that it was not Sherry's employer, rather, APS claims that Sherry was employed by Protection Inc. In support of its position, APS notes that Sherry's employment application has only Protection Inc.'s name on it and that APS ...


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