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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

SHARONDA BELL,

Plaintiff,

v.

ADDUS HEALTHCARE, INC.,

Defendant.

CASE NO. C06-5188RJB

ORDER GRANTING IN PART

AND DENYING IN PART

DEFENDANT’S MOTIONS TO

STRIKE AND DENYING

PLAINTIFF’S MOTIONS TO

STRIKE

This matter comes before the court on the Defendant’s Motions to Strike Inadmissable

Evidence (Dkt. 134), Plaintiff’s Motions to Strike Inadmissable Evidence (Dkt. 166), and

defendant’s request to strike evidence (Dkt. 178) that was submitted with Plaintiff’s Reply

Memorandum in Support of Cross Motion for Class Certification Under FRCP 23(C)(1) (Dkt.

166). The court has considered the pleadings filed in support of and in opposition to the motions

and the remainder of the file herein and finds matters raised in the motions suitable for decision

without oral argument.

I. FACTUAL BACKGROUND

Plaintiff Sharonda Bell is a former employee of defendant Addus Healthcare, Inc.

(“Addus”). Dkt 134. The parties dispute Ms. Bell’s dates of employment. According to Ms.

Bell, her employment began at Addus’ Oregon office as a home care aid in 2001. Deposition of

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Sharonda Bell (“Bell Dep.”), Dkt 130, Ex. #2 at 10. In 2002, Ms. Bell transferred to Addus’

office in Vancouver, Washington to work as an office assistant and care giver. Id. According to

Addus, Ms. Bell’s employment as a home care aid began on July 18, 2002, in the Oregon office,

and she was transferred to work as a home care aid and to occasionally work in the district office

in Vancouver on June 21, 2003. Dkt. 76 at 3. However, it is undisputed that Addus terminated

Ms. Bell in Washington after a background check revealed that Ms. Bell was disqualified from

working for Addus under the rules of the Washington Department of Social and Health Services. 

Bell Dep. at 20-21. 

While in the Vancouver office, Ms. Bell worked to answer phones, answer questions of

people who visited the office, and make appointments. Dkt. 76 at 4; Dkt. 86 at 9, 14. Ms. Bell

was also available for dispatch to handle emergency care needs. Dkt. 86 at 14. Ms. Bell

sometimes took rest breaks of no more than five minutes each when her schedule permitted. Dkt.

76 at 5; Dkt. 86 at 9. She was unable to take a meal period unless another employee was present

in the office because she could not leave the front desk unattended. Dkt. 76 at 5; Dkt. 86 at 10.

The parties contest the frequency with which Ms. Bell took her breaks and whether she was paid

for her breaks and missed meal periods. Dkt. 76 at 5; Dkt. 86 at 10.

Ms. Bell also worked in the field as a home care aid. Her duties included cooking, running

errands, and providing personal care. Dkt. 76 at 6. Ms. Bell was required to record when she

arrived at and left each client’s home and to complete a checklist to indicate the tasks she

performed. Dkt. 86 at 10. Then, Ms. Bell’s supervisor would sign the time sheets. Id. at 11. 

Ms. Bell contends that these time sheets were altered. Id. Further, Ms. Bell contends that her

work hours varied; she would sometimes work fewer than eight hours and, at other times, would

work up to twelve hours. Id. According to Ms. Bell, Addus would not allow her to leave clients

alone and was unable to take meal and rest periods while working in the field. Dkt. 86 at 12.

Ms. Bell alleges that Addus’ violations of wage and hour laws affected many current and

former employees of Addus. Dkt. 1; Dkt. 98. During pre-certification discovery, Addus provided

Ms. Bell with a list of current and former employees in Washington and Oregon. Dkt. 98 at 11. 

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Then, Ms. Bell sent questionnaires to all of the employees on the list. Id. On the questionnaires,

Ms. Bell stated various Oregon and Washington wage and hour laws and asked each respondent

whether he or she had received rest breaks, meal breaks, overtime pay, wages for all hours

worked, and his or her final paycheck on time. See Dkt. 103, Ex. B at 1 (“Wash. questionnaire”);

Dkt. 103, Ex. C at 1 (“Or. questionnaire”). Ms. Bell contends that numerous current and former

employees completed the questionnaires and returned them to Ms. Bell’s counsel. Dkt. 103, ¶¶ 3-

4. Finally, Ms. Karen A. Moore, an attorney with Ms. Bell’s counsel’s firm, declares that she

created two summaries regarding when former Addus employees received their final paychecks. 

Declaration of Karen A. Moore (“Moore Decl.”), Dkt. 106 at ¶ 4.

Meanwhile, Addus contends that its counsel collected declarations from current employees

regarding the issues presented in this case. Dkt. 142 - 156. In addition, Addus claims that each

employee that gave a declaration was given and initialed a disclosure statement before counsel

proceeded with the declaration. Dkt. 178 at 2.

II. PROCEDURAL BACKGROUND

On April 14, 2006, Ms. Bell filed a complaint in this court alleging that Addus violated

both Washington and Oregon laws by failing to provide rest breaks and meal periods, failing to

pay overtime wages, failing to pay all wages when due upon termination, and breaching the duty

of good faith and fair dealing. Dkt. 1. Ms. Bell sought damages and a permanent injunction on

behalf of herself and a class that has not yet been certified. Id. at 13, 25.

On February 22, 2007, Addus filed a Motion for Order Under Fed. R. Civ. P. 23(d) in re

Communication with Putative Class Members. Dkt. 93. In her response to the motion, Ms. Bell

moved for class certification. Dkt. 98. The court re-noted the Plaintiff’s Cross Motion for Class

Certification (Dkt. 98) so that briefing on the motion would proceed as per Local Rule CR 7. 

Dkt. 105. 

Pursuant to the parties’ joint request and in order to facilitate mediation, the court stayed

its ruling on Ms. Bell’s motion for class certification. Dkt. 112. The court twice re-noted the

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motion upon the request of Addus’ new counsel. Dkt. 113; Dkt. 126. On June 28, 2007, Addus

filed a Motion for Summary Judgment. Dkt. 127. The court re-noted the Defendant’s Motion for

Summary Judgment and the Plaintiff’s Cross Motion for Class Certification (Dkt. 98), pursuant to

the parties’ request, so that the two motions could be considered together. Dkt. 162. 

On August 14, 2007, the Court issued an Order granting in part and denying in part the

Defendant’s Motion for Summary Judgment. Dkt. 179. As a result of that order, Ms. Bell seeks

damages on six remaining claims. Id.

Finally, both parties filed motions to strike. Addus included two motions to strike in its

response brief to the motion for class certification. Dkt. 134. Ms. Bell included two motions to

strike in her reply brief on the motion for class certification. Dkt. 166. On August 10, 2007,

Defendant filed a Surreply in Opposition to Plaintiff’s Motion for Class Certification and argued

that the Court should strike declarations attached to Ms. Bell’s reply brief on the motion for class

certification. Dkt. 176. 

III. DISCUSSION

A. Defendant’s Motion to Strike Inadmissable Evidence.

In Addus’ Opposition to Plaintiff’s Motion for Class Certification, Addus included two

motions to strike evidence that Ms. Bell had provided to the court. Dkt 134. First, Addus moved

to strike Plaintiff’s Questionnaire Responses and Related Statements in the Declaration of Meike

B. Chase on the Ground That They are Inadmissable Hearsay. Id. at 8. Second, Addus moved to

strike the Moore Declaration because it does not comply with Fed. R. Evid. 1006. Id. at 14.

1. Hearsay

Hearsay is defined as a “statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid.

801(c). Further, in some pre-trial proceedings, the Court must exclude hearsay evidence from

consideration. See, e.g., Fed. R. Civ. P. 56(e)(summary judgment). However, Addus cites no

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authority that supports the proposition that the Court must exclude hearsay evidence during

consideration of class certification under Fed. R. Civ. P. 23. Dkt. 134. Therefore, even if the

Court were to find that the questionnaires and the declaration of Ms. Chase were hearsay, the

Court is not required to exclude the evidence from consideration. 

The Court should decline to grant defendant’s motion to strike the questionnaires and the

declaration of Ms. Chase as inadmissible hearsay.

2. Responses Are Not Offered Under Penalty of Perjury

In some situations, the Court may require unsworn declarations to contain the phrase

“under penalty of perjury”. 28 U.S.C. § 1746. Addus argues that the Court should strike the

questionnaires because they do not contain the phrase “under penalty of perjury”. Dkt 134 at 26. 

However, exactly as above, Addus cites no authority for the proposition that evidence presented

to the Court for purposes of a class certification motion is required to comply with a particular

federal law. The Court should decline to grant defendant’s motion to strike the questionnaires

and the declaration of Ms. Chase because the questionnaires do not contain “under penalty of

perjury”.

3. Questionnaires Misstate the Law and Present Misleading Evidence

a. Statements of Law and Evidence Presented Regarding Washington Rest

Breaks

Under Washington law, “[e]mployees shall be allowed a rest period of not less than 10

minutes, on the employer's time, for each 4 hours of working time.” WAC 296-126-092(4). 

Further, the Washington Department of Labor and Industries (“DL&I”) has explained what

constitutes a “rest period” and an “intermittent rest period”. DL&I, Admin. Policy Number

E.C.6. (Dkt. 138, Ex. 1). An intermittent rest period is an interval “of short duration in which

employees are allowed to relax and rest, or for brief personal inactivities from work or exertion.” 

Id. at 5. More importantly,:

[i]n certain circumstances, employers may have a business need to require employees to

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remain on call during their paid rest periods. This is allowable provided the underlying

purpose of the rest period is not compromised. This means that employees must be

allowed to rest, eat a snack or drink a beverage, make personal telephone calls, attend to

personal business, close their door to indicate they are taking a break, or make other

personal choices as to how they spend their time during their rest break. In this

circumstance, no additional compensation for the 10-minute break is required. If they are

called to duty, then it transforms the on-call time to an intermittent rest period and they

must receive the remainder of the 10-minute break during that four-hour work period.

Id.

 Paragraph 2 of the Washington questionnaire submitted by plaintiff informs the

respondent that “[f]or each work day, you must receive at least one (1) ten minute rest break for

each four hours you worked[.]” Wash. questionnaire (emphasis in original). The questionnaire

neither explains intermittent rest periods nor asks about intermittent rest periods. Id. 

Addus argues that the questionnaire misstates Washington law. Dkt 134 at 27. Addus

requires employees to remain at the home of the client for the entire period the employee is

scheduled to work. Id. at 19-20. Due to the fact that Addus has a business need to require

employees to remain on call during their rest periods, Addus argues that the questionnaire does

not fully explain Washington law to the current and former Addus employees. Id. at 27. Further,

the questionnaire does not ask each employee whether he or she was given an accumulation of 10

minutes of rest time during each 4 hours of work. See Wash. questionnaire. Thus, the

questionnaire does not state all of the pertinent Washington law on the issue of rest periods and

also does not obtain from each employee all of the relevant facts relating to rest periods.

The Court should grant to defendant the motion to strike the portion of the Wash.

questionnaires relating to rest periods.

b. Statements of Law and Evidence Presented Regarding Washington Meal 

Periods

Under Washington law, employees are entitled to a meal period, WAC 296-126-092;

however, an employer is not required to provide duty free meal periods. White v. Salvation

Army, 118 Wn. App. 272, 274-275, 75 P.3d 990 (2003). Further, an employer may require an

employee to remain at his or her post during the 30 minute meal period and respond to

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emergencies as long as the employer compensates the employee for all hours worked. Iverson v.

Snohomish County, 117 Wn. App. 618, 72 P.3d 772, 773 (2003). “To make the [employer] pay

again for a 30-minute meal break simply because it did not schedule one is not supported by the

regulation or the administrative policy.” White, 118 Wn. App. at 274.

Paragraph 2 of the Washington questionnaire submitted by plaintiff informs the

respondent that he or she “must receive a full 30 minute duty-free meal break if [the employee]

work[s] more than 5 hours in a single shift.” Wash. questionnaire (emphasis in original). 

Addus argues that the questionnaire misstates Washington law. Dkt 134 at 29. Addus

requires employees to remain at the home of the client for the entire period the employee is

scheduled to work. Id. at 19-20. And, Addus may require each employee to remain on duty

during the 30 minute meal period as long as Addus compensates the employee for all hour

worked. Iverson, 72 P.3d at 773. However, the inclusion of “duty-free” on the questionnaire

clearly misstates Washington meal period law. Wash. questionnaire; Iverson, 72 P.3d at 773. 

Further, even if the respondent did not receive a “duty-free” meal period, the questionnaire does

not ask the respondent whether he or she was compensated for all the hours worked. See Wash.

questionnaire.

The Court should grant to defendant the motion to strike the portion of the Washington

questionnaires relating to meal periods.

c. Statements of Law and Evidence Presented Regarding Oregon Meal 

Periods

Paragraph 3 of the Oregon questionnaire submitted by plaintiff informs the

respondent that he or she “must receive a full 30 minute uninterrupted meal break...”. Or.

questionnaire (emphasis in original). Oregon law does not provide a private right of action for

missed meal periods, but, under Oregon law, an employee may recover unpaid wages for missed

meal periods. See Dkt. 179 at 10 (order on summary judgment). However, unlike the

Washington questionnaire, the Oregon questionnaire asks the respondent whether a meal period

was deducted from his or her pay. Or. questionnaire. 

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Addus argues that the Oregon questionnaire misstate Oregon meal period law. Dkt 134 at

29. However, if Ms. Bell is able to prove that Addus required her to work through her meal

periods in Oregon without compensating her for that time, then Addus would still owe Ms. Bell

unpaid wages. Dkt. 179 at 10. Thus, the questionnaire does not misstate Oregon law on the

subject of compensated but missed meal periods.

The Court should decline to grant the motion to strike the portion of the Or.

questionnaires relating to Oregon meal periods.

4. Ms. Chase Lacks the Requisite Personal Knowledge

Addus argues that, under Fed. R. Evid. 602 and Fed. R. Civ. P. 56(e), Ms. Chase’s

declaration is inadmissable hearsay. Dkt. 134 at 28-29. However, Addus cites no authority for

the proposition that evidence presented to the Court for purposes of a class certification motion is

required to comply with those particular federal laws. Id. Thus, the Court should decline to grant

to defendant the motion to strike the declaration of Ms. Chase. 

B. Defendants Motion to Strike the Moore Declaration

Addus argues that, under Fed. R. Evid. 1006, the Court should strike the Amended

Declaration of Karen Moore. Dkt. 134 at 30-32. However, Addus cites no authority for the

proposition that evidence presented to the Court for purposes of a class certification motion is

required to comply with that particular federal law. Id. Thus, the Court should decline to grant

to defendant the motion to strike the Moore Decl. 

C. Plaintiff’s Motion to Strike the Declarations of Defendant’s Employees

Addus obtained declarations from some of its current employees regarding issues

presented in this case. Dkt. 142-156. Ms. Bell has moved to strike those declarations because

the declarations are undisclosed witness testimony and Addus obtained the declarations under

coercive circumstances. Dkt. 166 at 10.

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1. Undisclosed Witness Testimony

A party must supplement disclosures made pursuant to Fed. R. Civ. P. 26(a) where “the

information disclosed is incomplete or incorrect and if the additional or corrective information has

not been made known to the other parties during the discovery process or in writing”. Fed. R.

Civ. P. 26(e). Further, “without substantial justification”, a party is not permitted to use evidence

on a motion that was not properly disclosed. Fed. R. Civ. P. 37(c)(1). Ms. Bell argues that

Addus has not supplemented its discovery disclosure as to 30 employees. Dkt. 166 at 10. 

However, even if Ms. Bell is correct, she does not sufficiently identify the 30 employees who

were not disclosed so that the Court could strike the relevant declarations. Id. 

In addition, Ms. Bell argues that Addus violated pre-certification discovery orders by

obtaining declarations from 130 of its employees. Id. However, Ms. Bell does not cite an order

of this Court that restricted Addus from gathering evidence on its own behalf. Id. Thus, the

Court should deny the plaintiff’s motion to strike the defendant’s declarations based on

undisclosed witness testimony.

2. Coercion

Ms. Bell argues that the declarations of Addus’ employees are unreliable because the

declarants feared they would lose their jobs if they did not cooperate with Addus’ counsel, the

declarants did not understand their rights, and the declarants did not understand that they might

be signing away their claims. Dkt. 166 at 11. However, each declarant initialed a disclosure that

specifically stated that the legal representative interviewing the declarant represented Addus and

not the declarant; that the declarant might have the right to participate as class members in the

lawsuit; that the interview was voluntary and the declarant could stop the interview at any time;

that the declarant could review the declaration and make any changes before signing it; and, that

Addus would not retaliate against any employee who chose not to make a declaration. See Dkt.

142-156, ¶¶ 1-5 of each employee declaration. Therefore, the Court should deny the motion to

strike the declarations based on the declarations being obtained under coercion.

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D. Plaintiff’s Motion to Strike Defendant’s Use of Plaintiff’s Criminal History

Fed. R. Evid. 609(b) prohibits admission of a criminal conviction for impeachment

purposes if the conviction is more than 10 years old and the proponent has not given “the adverse

party sufficient advance written notice of intent to use such evidence to provide the adverse party

with a fair opportunity to contest the use of such evidence.” 

Ms. Bell argues that the Court should strike Addus’ use of her criminal history because

Addus did not give Ms. Bell advance written notice that Addus would use her criminal history to

attack her credibility. Dkt. 166 at 15. However, Ms. Bell cites no authority for the proposition

that evidence presented to the Court for purposes of a class certification motion are required to

comply with that particular federal law. Id. Further, even if the Court were to strike Ms. Bell’s

criminal history for purposes of class certification, Ms. Bell does not cite an authority for the

proposition that Addus would not be able to attack Ms. Bell’s credibility in subsequent court

proceedings. Id. Therefore, the Court should deny to plaintiff the motion to strike defendant’s

use of plaintiff’s criminal history.

E. Plaintiff’s Reply Brief Declarations

“It is well accepted that raising of new issues and submission of new facts in [a] reply

brief is improper.” Schwartz v. Upper Deck Co., 183 F.R.D. 672, 682 (S.D. Cal. 1999)

(addressing class certification under F.R.C.P. 23), citing Provenz v. Miller, 102 F.3d 1478, 1483

(9th Cir.1996), cert. denied, 522 U.S. 808, 118 S.Ct. 48, 139 L.Ed.2d 14 (1997). 

Ms. Bell attached to her reply brief for class certification the Declarations of Anita

Gallarado, Francis Garcia, Brandie James, Magaly Pruneda, and Jane Doe. See Dkt. 166. Addus

argues that the Court should strike these declarations because Ms. Bell improperly submitted new

facts in a reply brief. Dkt. 176 at 2. The Court should strike the declarations because a party

should not submit new facts in a reply brief. Schwartz, 183 F.R.D. at 682.

///

///

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IV. ORDER

Therefore, it is hereby

ORDERED that:

1) the Defendant’s Motion to Strike Plaintiff’s Questionnaire Responses and Related

Statements in the Declaration of Meike B. Chase (Dkt. 134) is GRANTED in part and DENIED

in part as discussed above;

2) the Defendant’s Motion to Strike the Moore Decl. (Dkt. 134) is DENIED;

3) the Plaintiff’s Motion to Strike the Declarations of Defendant’s Employees (Dkt. 166)

is DENIED;

4) the Plaintiff’s Motion to Strike the Defendant’s Use of Plaintiff’s Criminal History

(Dkt. 166) is DENIED; and,

5) the Declarations of Anita Gallarado, Francis Garcia, Brandie James, Magaly Pruneda,

and Jane Doe submitted with the Plaintiff’s Reply In Support of Motion for Class Certification

(Dkt. 176) are STRICKEN.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

DATED this 27th day of August, 2007.

AROBERT J. BRYAN

United States District Judge 

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