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Bob Diorio v. Village of Tinley Park

July 6, 2012

BOB DIORIO, PLAINTIFF,
v.
VILLAGE OF TINLEY PARK, DEFENDANT.



The opinion of the court was delivered by: Judge John J. Tharp

MEMORANDUM OPINION AND ORDER

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.

BACKGROUND*fn1

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:

14.8 Canine Officer. The Village established its first canine unit. As the amount of time outside of required duty hours that may be necessary for the maintenance, care, training and transport of the dog varies and cannot be precisely determined, the parties agree that a canine officer shall receive extra compensation of two thousand ($2,000.00) dollar [sic] per contract year of service as a canine officer. It is agreed that this extra payment shall constitute full compensation at the appropriate rate for all hours of work on off-duty time for the maintenance, care, training and transport of the dog. This additional compensation will be terminated immediately upon the officer no longer being assigned as a canine officer. The parties have agreed that the extra compensation shall be paid in a lump sum as extra pay on or before April 15 of each year of this Agreement.

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:

An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these ...


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