MEMORANDUM OPINION AND ORDER

JOHN J. THARP, Jr., District Judge.

Plaintiff Bob Diorio, a K-9 police officer, alleges that Defendant Village of Tinley Park violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, by failing to pay overtime wages for time in excess of forty hours per week that Diorio worked caring for his service animal. Tinley Park has moved to dismiss Diorio's First Amended Complaint on the ground that the collective bargaining agreement ("CBA") covering Diorio is a "reasonable agreement" for compensation pursuant to 29 C.F.R. § 785.23. Because determining whether the CBA is a "reasonable agreement" under § 785.23 is in this case a question of fact not susceptible to resolution on a Rule 12(b)(6) motion to dismiss, the Court denies Tinley Park's motion to dismiss.

BACKGROUND1

Diorio is employed by Tinley Park as a K-9 police officer. Am. Cmplt. ¶ 2. His job duties and responsibilities include the care, feeding, boarding, grooming, transport, and training of Tinley Park's service animal. Id. ¶ 3. During the relevant period, Diorio was a party to a CBA with Tinley Park which set forth the compensation for K-9 police officers. Id. ¶ 4. The relevant portion of the CBA, which was attached to the Amended Complaint and can be considered on this motion to dismiss, states in full:

Id. at Ex. A § 14.8.

Diorio, with Tinley Park's permission and for its benefit, spends additional time caring for his service animal outside of his regular working schedule. Id. ¶¶ 7-9. For this extra working time Tinley Park pays Diorio the additional $2,000 per year per the CBA. Id. ¶ 13. Diorio does not receive any other monetary compensation or benefits for his time spent caring for the service animal. Id. The parties have no agreement as to the number of hours required for Diorio to care for the service animal, and the $2,000 annual compensation outlined in the CBA does not estimate or otherwise consider the number of hours worked by Diorio. Id. ¶ 12.

Diorio alleges that the time he has spent caring for the service animal outside of his regular work schedule has caused him to work in excess of forty hours in one or more individual workweeks. Id. ¶¶ 27-30. He further alleges that Tinley Park has not compensated him for his overtime at a rate of one and one-half times his regular rate of pay. Id. ¶ 33. Diorio claims that Tinley Park's refusal to pay overtime wages constitutes a willful violation of the FLSA, 29 U.S.C. § 207. Id. ¶¶ 32-33.

In its motion to dismiss, Tinley Park argues that the CBA is a "reasonable agreement" with Diorio under 29 C.F.R. § 785.23, and therefore Diorio fails to state a claim for which relief can be granted.

LEGAL STANDARD

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). In evaluating the sufficiency of the complaint, the Court must "construe all of the plaintiff's factual allegations as true, and must draw all reasonable inferences in the plaintiff's favor." Virnich, 664 F.3d at 212. "However, legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption." Id. Under Rule 8(a)(2), a plaintiff's complaint must contain a short and plain statement sufficient to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Federal notice pleading standards require that a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. Put differently, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

DISCUSSION

The Fair Labor Standards Act (FLSA) generally requires that employers pay employees for overtime work (more than 40 hours per week) at wages equal to one and one-half times the employee's regular rate. 29 U.S.C. § 207(a). Tinley Park argues that it was not required to compensate Diorio at a rate of one and one-half times his regular rate of pay for time he worked in excess of forty hours per week caring for his service animal. The Village asserts that time worked performing canine care does not have to be compensated at the same rate of pay as paid for law enforcement activities, and that it properly worked out a reasonable agreement for compensation as permitted by 29 C.F.R. § 785.23, which states, in relevant part:

Courts regularly apply § 785.23's "reasonable agreement" language to disputes about the compensation for police officers who work with service dogs in view of the difficulty of calculating the number of hours they spend caring for their animals at home. See, e.g., Rudolph v. Metro. Airports Comm'n, 103 F.3d 677, 680-81 (8th Cir. 1996); Brock v. City of Cincinnati, 236 F.3d 793, 805 (6th Cir. 2001); Huffman v. City of Lake Jackson, No. H-08-1541, 2009 WL 3735467, at *2-3 (S.D. Texas Nov. 4, 2009); Leever v. Carson City, 360 F.3d 1014, 1017-18 (9th Cir. 2004).

To show that it complied with FLSA by reaching a "reasonable agreement" with Diorio under 29 C.F.R. § 785.23, Tinley Park has the burden of proving that "(1) there was an agreement to compensate [Diorio] for [his] overtime work caring for [the service animal], and (2) the agreement was `reasonable,' having taken into account `all of the pertinent facts.'" Leever, 360 F.3d at 1018.

The First Amended Complaint admits that Tinley Park and Diorio's collective bargaining unit representatives reached an agreement to compensate Diorio for his overtime work. Am. Cmplt. ¶ 5; id. at Ex. A § 14.8. Therefore Tinley Park has satisfied the first requirement of § 785.23. But the second requirement of § 785.23, that the agreement was "reasonable," requires the resolution of facts that cannot be decided at the motion to dismiss stage. Whether the CBA agreement is reasonable in light of "all of the pertinent facts" is a quintessential question of fact that cannot be decided in the Village's favor at this stage of the litigation.

In his First Amended Complaint, Diorio alleges that the compensation outlined in the CBA does not consider the number of hours he actually spends caring for his service animal. Am. Cmplt. ¶ 12. He also alleges that the amount of money agreed to in the CBA does not compensate him at least minimum wage for the time he spends caring for the canine.2 Id. ¶14. Those allegations alone raise questions of fact as to the reasonableness of the CBA agreement.3 To show that the CBA meets the requirements of 29 C.F.R. § 785.23, Tinley Park needs to establish either that it took into account the number of hours worked by Diorio, or that the number of hours worked is not pertinent. It cannot make either showing at this time.

Tinley Park argues that the text of the CBA itself renders the agreement "reasonable as a matter of law," because it states that the extra payment to K-9 officers "shall constitute full compensation at the appropriate rate." Am. Cmplt. at Ex. A § 14.8 (emphasis added). But the reasonableness of an agreement must be determined based on "all of the facts and circumstances of the parties' relationship," not just whether the parties included a recitation as to the reasonableness of the compensation in the agreement.4 Brock, 236 F.3d at 806-07; see also Leever, 360 F.3d at 1021.

The case law cited by both parties confirms this Court's conclusion that whether the CBA is "reasonable" is a fact intensive question ill-suited for evaluation on a motion to dismiss. In Leever, the Ninth Circuit reversed the district court's order granting summary judgment to the defendant because there was "no evidence in the record" establishing that the parties to the agreement took into account the number of hours required to be spent caring for a service animal. 360 F.3d at 1020. On that basis, the court could not find the agreement reasonable as a matter of law. Id. at 1019.

Likewise, the three cases upon which Tinley Park relies were also decided only after the development of a full evidentiary record. In Rudolph, the Eighth Circuit affirmed denial of the defendant's motion for judgment as a matter of law, finding it proper for the district court to send to the jury the question whether an agreement was reasonable. 103 F.3d at 681. In Brock, the district court found in favor of the defendant only after a bench trial, concluding that the question whether an agreement was reasonable is "intensely factual." 236 F.3d at 797. On appeal the Sixth Circuit could only decide the issue upon "review of the facts and circumstances revealed in the record." Id. at 807. Even in Huffman, where the district court granted summary judgment to the defendant, the court did not consider only the agreement's terms, but also considered "all of the facts and circumstances of the parties' relationship." 2009 WL 3735467 at *5. On this motion to dismiss, the facts regarding Diorio and Tinley Park's relationship are not before the Court, and therefore the Court cannot determine whether the CBA is "reasonable" or whether the CBA takes into account all pertinent facts.

* * *

For all of these reasons, the Court denies Defendant Tinley Park's Motion to Dismiss Plaintiff Diorio's First Amended Complaint.