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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 DENYING

DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT AND

GRANTING IN PART AND

DENYING IN PART

PLAINTIFF’S MOTION TO

STRIKE

This matter comes before the Court on the defendant’s Motion for Summary Judgment

(Dkt. 76) and the motion to strike contained in the plaintiff’s response (Dkt. 86). The Court has

considered the pleadings filed in support of and in opposition to the motions and the remainder of

the file herein.

I. FACTUAL BACKGROUND

The parties contest several factual issues. The following is a recitation of the facts taken in

the light most favorable to plaintiff Sharonda Bell. The Court has indicated contested factual

issues as appropriate.

Ms. Bell is a former employee of defendant Addus HealthCare, Inc. (“Addus

HealthCare”). The parties dispute the plaintiff’s dates of employment. According to Ms. Bell, her

employment began at the defendant’s Oregon office as a care giver in 2001. In 2002, she was

transferred to the defendant’s office in Vancouver, Washington to work as an office assistant and

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care giver. According to Addus HealthCare, 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 in the

Vancouver office on June 21, 2003. Dkt. 76 at 3.

Ms. Bell was terminated on May 25, 2005. Dkt. 86 at 13. During the last year of Ms.

Bell’s employment with Addus HealthCare, she joined the Service Employees International Union

(“the SEIU”). Dkt. 86 at 9. The Collective Bargaining Agreement (“the Agreement”) between the

SEIU and Addus HealthCare contained a grievance procedure providing a dispute resolution

process that includes arbitration. Dkt. 86 at 9, Dkt. 76 at 3. Ms. Bell contacted her union steward

regarding her termination but concedes that she did not exhaust this procedure with regard to her

claims in this suit. Dkt. 86 at 9. 

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 which tasks she

performed. Dkt. 86 at 10. The time sheets were then signed by Ms. Bell’s supervisor. Id. at 11.

Ms. Bell contends that these time sheets were altered. Id. Ms. Bell’s work hours varied. Dkt. 76

at 7. She would sometimes work fewer than eight hours and would work up to twelve hours at

other times. Id. According to Ms. Bell, she was not allowed to leave clients alone and was

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

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Although Addus HealthCare’s practice is to reimburse employees for their mileage

between clients’ homes, Ms. Bell contends that she was not fully reimbursed for her mileage. Dkt.

86 at 11. Addus HealthCare contends that she was reimbursed. Dkt. 32-1 at 5. The parties dispute

whether Ms. Bell earned more than minimum wage for time spent driving in connection with her

work as a home care aid. Dkt. 76 at 7, 86 at 11. 

II. PROCEDURAL BACKGROUND

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

HealthCare violated Washington and Oregon law 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 seeks damages and a permanent

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

On October 17, 2006, defendant Addus HealthCare, Inc. (“Addus HealthCare”) filed a

Motion for Summary Judgment (Dkt. 30) that is substantially similar to the instant motion. The

Court held that the motion appeared to be “an attempt to address jurisdictional and class

representative issues in accord with paragraphs (1) and (8) of the court’s scheduling and

discovery order (Dkt. 18)” and ordered that the motion be stricken as premature. Dkt. 69 at 2, 3.

The Court hoped that the parties would confer and resolve jurisdictional issues, including whether

the Court lacks subject matter jurisdiction by virtue of the plaintiff’s alleged failure to exhaust

contractual remedies, without the need for motion practice. On February 7, 2007, the parties filed

their Second Amended Joint Status Report, in which Addus HealthCare states that “no issue as to

jurisdiction remains before the court.” Dkt. 88 (Joint Status Report) at 3. Unfortunately, the

parties appear unwilling or unable to address jurisdictional issues on their own, and the Court will

therefore proceed on the defendant’s motion. The Court notes that while the motion professes to

address all of the plaintiff’s claims, it offers arguments relating only to Ms. Bell’s claims that she

was denied meal and rest periods in violation of Washington and Oregon law. See Dkt. 76 at 2.

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III. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party

fails to make a sufficient showing on an essential element of a claim in the case on which the

nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).

There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a

rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative

evidence, not simply “some metaphysical doubt.”). See also Fed. R. Civ. P. 56(e). Conversely, a

genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed

factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court

must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec.

Serv., Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of

the nonmoving party only when the facts specifically attested by that party contradict facts

specifically attested by the moving party. The nonmoving party may not merely state that it will

discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial

to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra).

Conclusory, non specific statements in affidavits are not sufficient, and missing facts will not be

presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

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B. MOTION TO STRIKE

Ms. Bell moves to strike the declaration of Tess Cannon (Dkt. 32-1) pursuant to Local

Rule CR 7(g). Dkt. 86 at 2. Ms. Bell moves to strike paragraphs three through six and eight

through eleven of Tess Cannon’s declaration on the grounds that the declaration is not based on

personal knowledge as required by Federal Rule of Civil Procedure 56(e), lacks foundation,

contains inadmissible hearsay, and violates the Best Evidence Rule. Dkt. 86 at 2, 4. With the

exception of the last statement of the third paragraph and the first sentence of the fourth

paragraph, the plaintiff fails to specifically identify what portions of the declaration she seeks to

strike. This omission has made it difficult to apply the plaintiff’s arguments to Ms. Cannon’s

declaration.

Plaintiff’s counsel notified the Clerk’s Office that a surreply would be filed regarding the

Motion for Summary Judgment. On February 15, 2007, Plaintiff’s counsel filed Plaintiff’s Reply in

Support of Motion to Strike Portions of the Declaration of Tess Cannon (Dkt. 92), which was

intended to be a reply on the plaintiff’s motion to strike. In the interest of fairness to both parties,

the Court has reviewed the surreply and considered only those arguments made in strict reply to

the defendant’s response to the motion to strike.

1. Personal Knowledge

Federal Rule of Civil Procedure 56 provides that affidavits must be made on personal

knowledge: “Supporting and opposing affidavits shall be made on personal knowledge, shall set

forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e). Federal Rule of

Evidence 602 also requires that witnesses have personal knowledge:

A witness may not testify to a matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter. Evidence to prove personal

knowledge may, but need not, consist of the witness' own testimony. This rule is subject

to the provisions of rule 703, relating to opinion testimony by expert witnesses.

Fed. R. Evid. 602. 

Ms. Bell contends that because Tess Cannon was not employed with Addus HealthCare

until July of 2004, she lacks personal knowledge of many aspects of Ms. Bell’s employment. Dkt.

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86 at 4. Ms. Bell contends that Ms. Cannon lacks personal knowledge as to when Ms. Bell was

hired to work in the Vancouver office, whether and when she joined the SEIU, whether the

plaintiff took breaks or meal periods, and whether the plaintiff was paid accurately and above

minimum wage. Dkt. 86 at 2, 4. 

In the declaration, Ms. Cannon concedes that her statements are largely based upon her

review of “Ms. Bell’s wage and hour records.” See, e.g. Dkt. 32-1 at 2. According to Ms.

Cannon’s third declaration (Dkt. 90-1), Ms. Cannon accessed documentation pertaining to Ms.

Bells’s date of hire, date of termination, union start date, hours worked and compensation earned,

and the Collective Bargaining Agreement in force and effect at the time of Ms. Bell’s employment

with Addus HealthCare. Dkt. 90-1 at 2. Ms. Cannon does not describe these documents or offer

copies for the Court’s review. The Court is therefore unable to discern whether such documents

constitute evidence sufficient to support a finding that Tess Cannon has the requisite personal

knowledge as provided in Federal Rule of Evidence 602. Statements based upon personal

knowledge gleaned only from Ms. Bell’s wage and hour records must therefore be stricken.

Ms. Cannon does offer an exhibit evidencing the dates on which Ms. Bell was hired, was

terminated, and joined the SEIU. Dkt. 90-2. The declaration identifies the exhibit solely as “the

document confirming items 1-3" of the declaration. Dkt. 90-1 at 2. The defendant fails to provide

any information as to what this document is or how it was obtained. The defendant therefore fails

to demonstrate that the document or the facts it contains would be admissible in evidence. The

Court should therefore exclude statements in Ms. Cannon’s declaration based solely upon her

review of this document.

a. Fifth Paragraph of Cannon Declaration

In the fifth paragraph of her declaration, Ms. Cannon declares as follows:

When Ms. Bell worked in the office, she was provided the opportunity to take rest breaks

regardless of whether she was working alone or with another office worker. The decision

on whether to take a rest break or not would have been Ms. Bell’s decision. Ms. Bell’s

shift in the Vancouver office was normally 6 hours or less in duration. Based upon my

review of the wage and hour records for Addus, Ms. Bell was paid for each and every rest

break while she worked in the office of Addus in Vancouver, Washington.

Dkt. 32-1 at 5. Ms. Cannon does not demonstrate that she has personal knowledge of whether

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Ms. Bell had the opportunity to take rest breaks. She does not demonstrate that she worked with

Ms. Bell or otherwise has a basis for knowing that it was Ms. Bell’s decision whether to take

breaks. Her knowledge of Ms. Bell’s compensation is based solely on her review of documents

not identified or provided to the Court. Paragraph five of Ms. Cannon’s declaration should

therefore be stricken as not based on personal knowledge.

b. Sixth Paragraph of Cannon Declaration

In the sixth paragraph of her declaration, Ms. Cannon declares as follows:

With regard to meal periods, Ms. Bell would have been completely relieved from duty

during this time and therefore should have been able to obtain a meal period or engage in

personal pursuits. Based upon my review of the wage and hour records for Addus, Ms.

Bell was paid for all missed meal periods.

Dkt. 32-1 at 5. Ms. Cannon offers no basis for knowing whether Ms. Bell was relieved from duty

and able to take a meal period, and her knowledge of Ms. Bell’s compensation is based solely on

her review of documents not identified or provided to the Court. Paragraph six of Ms. Cannon’s

declaration should therefore be stricken as not based on personal knowledge.

c. Eighth and Ninth Paragraphs of Cannon Declaration

The eighth and ninth paragraphs of Ms. Cannon’s declaration concern mileage

reimbursement and Ms. Bell’s hourly wage. These paragraphs appear to be based solely upon Ms.

Cannon’s review of wage and hour records and should be stricken.

d. Tenth Paragraph of Cannon Declaration

In the tenth paragraph of her declaration, Ms. Cannon declares as follows:

When Ms. Bell worked for Addus, in particular as a homecare aide out in the field . . . by

definition Ms. Bell’s activities were not supervised and her rest breaks were not scheduled.

Nevertheless, the nature of the work should have allowed Ms. Bell to obtain intermittent

rest breaks every three (3) hours of at least 15 minutes per Addus’ policy for which Ms.

Bell was paid. Further, Ms. Bell never complained to anyone associated with Addus that

she was not being provided appropriate rest breaks. If Ms. Bell decided not to take a rest

break that would have been her choice freely made. Addus certainly does not prohibit or

compromise the ability of one of our nonexempt employees to obtain relief from work or

exertion as required under the applicable law. Based upon my review of the wage and

hour records, whether Ms. Bell decided to take a rest break or not, she was paid for this

time.

Dkt. 32-1 at 6. The fact that Ms. Cannon is the Agency Director for Addus HealthCare’s

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Vancouver office is evidence sufficient to support a finding that Ms. Cannon has personal

knowledge of the definition of Ms. Bell’s job, the nature of her work, and the company’s policies.

Ms. Cannon does not establish that she has knowledge of whether and to whom employee

complaints are made, whether Ms. Bell missed rest breaks by choice, and whether Ms. Bell was

paid for her rest breaks. The third, fourth, and sixth sentences of the tenth paragraph should

therefore be stricken as not based on personal knowledge.

e. Eleventh Paragraph of Cannon Declaration

In the eleventh paragraph, Ms. Cannon declares as follows:

While working as a homecare aid out in the field performing domestic and companionship

services for our clients in their homes, Ms. Bell would have been able to obtain a meal

period between the second and fifth hour of her shift either in the client’s home or during

travel time between various client’s homes. Based upon my review of the wage and hour

records, whether Ms. Bell decided to take a meal period or not, she was paid for this time.

Dkt. 32-1 at 6. Ms. Cannon offers no basis for knowing if and when Ms. Bell was able to take a

break from her shift and whether she was paid for missed meal periods. This paragraph should be

stricken.

2. Hearsay

Hearsay is defined as a “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). Ms. Bell contends that Ms. Cannon’s statements about the contents of Addus

HealthCare’s records are inadmissible hearsay. The defendant contends that “payroll and

personnel files” are Records of Regularly Conducted Activity under Federal Rule of Evidence

803(6). In Ms. Cannon’s third declaration, Ms. Cannon states that the documentation she

references “was generated in the ordinary course of business on or about the dates appearing

thereon, according to practices and procedures of the company, all of which I am familiar with.”

Dkt. 90-1 at 2. Unfortunately, Ms. Bell does not identify the explicit statements she seeks to

exclude. The plaintiff therefore fails to demonstrate that any of Ms. Cannon’s declaration

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constitutes hearsay. The Court should decline to strike statements from Ms. Cannon’s declaration

on this basis.

3. Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, provides as follows: “To prove

the content of a writing, recording, or photograph, the original writing, recording, or photograph

is required, except as otherwise provided in these rules or by Act of Congress.” Fed. R. Evid.

1002. Ms. Bell contends that Ms. Cannon’s declaration violates the Best Evidence Rule. Ms.

Cannon’s testimony, while based on certain Addus HealthCare records, does not appear to be an

attempt to prove the contents of those records. The Court should decline to strike the declaration

on this basis. 

C. EXHAUSTION OF CONTRACTUAL REMEDIES

Ms. Bell admits that she did not exhaust the grievance procedure provided by the

Collective Bargaining Agreement before commencing suit against Addus HealthCare but contends

that the procedure does not govern her claims because they are non-negotiable, state-law based,

and independent from the Agreement. Dkt. 86 at 15. Generally, employees must exhaust the

grievance procedure provided by a binding collective bargaining agreement before seeking judicial

relief. Ervin v. Columbia Distributing, Inc., 84 Wn.App. 882, 887 (1997); Gilstrap v. Mitchell

Bros. Truck Lines, 270 Or. 599, 606 (1974). An employee may avoid this exhaustion requirement

if she demonstrates that the union has breached its duty of fair representation or that use of the

grievance procedure would be futile. Ervin, 84 Wn.App. at 887. The exhaustion requirement

applies only to employees “who allege violation of a labor contract.” See id; Wilson v. City of

Monroe, 88 Wn.App. 113, 115 (1997) (“When an employee brings a claim against an employer

based on nonnegotiable, substantive rights that are not dependent on a collective bargaining

agreement (CBA), the employee is not first required to exhaust the remedies provided by a CBA

arbitration clause.”).

The defendant cites Moran v. Stowell, 45 Wn.App. 70, 76 (1986), and Gilstrap, 270 Or.

at 606, for the proposition that all employee claims must proceed through collective bargaining

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agreement procedures. In Moran, the court stated the general rule as follows: “Before an action

to obtain the benefits of a collective bargaining contract can be maintained, the plaintiff must

exhaust his contractual remedies through the grievance procedure provided for in the contract.”

Id. at 75 (emphasis added). The Moran plaintiffs were suing for reimbursement of accrued,

unused sick leave. Id. at 71. The relief they sought was governed by, not independent from,

collective bargaining agreements. Id. at 72 (“sick leave benefits were governed by a series of

collective bargaining agreements”),76 (“relief sought regarding sick leave benefits available

pursuant to the appellants' employment terms and conditions ”), 81 (“denial of compensation for

the appellants' unused sick leave was based upon the provisions of the collective bargaining

agreement and the applicable county ordinance”). Similarly, the plaintiffs in Gilstrap were

“asserting rights based on the lease, the collective bargaining agreement, and oral promises.”

Gilstrap, 270 Or. at 604. 

The Collective Bargaining Agreement in this case is explicitly limited to rights provided by

the employee handbook and the Agreement itself. Article 18 of the Agreement provides a

grievance procedure and defines grievances: 

A grievance is hereby defined as a claim against, or dispute with, the Employer by an

employee or the Union representative involving an alleged violation by the Employer

of the terms of this Agreement and/or the Employee Handbook. An individual

employee or group of employees shall have the right to present grievances and to have

such grievances adjusted without involvement of the Union, as long as the adjustment is

not inconsistent with the terms of this Agreement and/or the Employee Handbook and the

appropriate Union representative has been given the opportunity to present at such

adjustment.

Dkt. 77-2 at 15 (emphasis added). Addus HealthCare has failed to demonstrate which, if any, of

the plaintiff’s claims arise from rights created by the Collective Bargaining Agreement or the

employee handbook and therefore constitute grievances as defined by the Agreement such that the

plaintiff was required to exhaust the Agreement’s grievance procedure. The Court should

therefore decline to enter summary judgment on this basis.

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D. DOMESTIC SERVICE EXEMPTION

Under Oregon law, certain employees are exempt from Oregon laws establishing minimum

employment conditions:

ORS 653.010 to 653.261 do not apply to any of the following employees:

. . . 

(14) An individual employed in domestic service employment in or about a family home to

provide companionship services for individuals who, because of age or infirmity, are

unable to care for themselves. 

Or. Rev. Stat. §653.020(14). Addus HealthCare contends that Ms. Bell is precluded by Or. Rev.

Stat. §653.020 from asserting certain claims under Oregon law because she fits this exemption.

Dkt. 76 at 14. Ms. Bell contends that this exemption applies only where the employee works in

the home of her employer; because she was employed by Addus HealthCare, Ms. Bell contends

that she does not fit within this exemption. Dkt. 86 at 18.

“Domestic service” is defined by regulation:

As used in ORS 653.010 to 653.261 and these rules, unless the context requires

otherwise:

. . . 

(13) "Domestic service" means services of a household nature performed by an employee

in or about a family home (permanent or temporary) of the person by whom the

employee is employed. The term includes, but is not limited to, employees such as cooks,

waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, gardeners, and

companions to the elderly and infirm.

Or. Admin. R. 839-020-0004(13) (emphasis added). The parties do not dispute that Ms. Bell was

employed by Addus HealthCare, and the defendant offers no evidence that Ms. Bell worked in the

family home of the person by whom she was employed. The Court should therefore decline to

grant summary judgment on this basis.

E. MEAL AND REST PERIODS UNDER WASHINGTON LAW

Addus HealthCare contends that summary judgment is warranted because Ms. Bell was

compensated for all meal and rest periods. Dkt. 76 at 14.

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1

 Both parties cite Washington Department of Labor and Industries Administrative Policy ES.C.6 (2002)

but have not provided the Court with a copy of this document. The Court was able to locate the policy online.

ORDER

Page 12

1. Meal Periods

Addus HealthCare contends that summary judgment is appropriate in this case because

Ms. Bell was paid for all missed meal periods and that Ms. Bell missed meal periods only because

she voluntarily waived such meal periods. Dkt. 76 at 21. 

By regulation, Washington employees are entitled to a meal period:

(1) Employees shall be allowed a meal period of at least 30 minutes which commences no

less than two hours nor more than five hours from the beginning of the shift. Meal periods

shall be on the employer's time when the employee is required by the employer to remain

on duty on the premises or at a prescribed work site in the interest of the employer.

(2) No employee shall be required to work more than five consecutive hours without a

meal period.

WAC 296-126-092. As interpreted by the Washington State Department of Labor and Industries,

the meal period must be paid if the employee is on the premises or at the work site and required to

act in the interests of the employer during the meal period. Wash. State Dep’t of Labor and

Indus., No. ES.C.6, Meal and Rest Periods for Nonagricultural Workers Age 18 and Over 3

(2002), http://www.lni.wa.gov/WorkplaceRights/files/policies/esc6.pdf.1

 The employer may not

prevent employees from taking a meal period but is under no affirmative duty to schedule a meal

period for a specific time. White v. Salvation Army, 118 Wn.App. 272, 279 (2003). In addition,

the employer need not reduce employees’ duties during the meal period. See id. at 278. The meal

period may be interrupted so long as the employee receives thirty total minutes of mealtime.

Wash. State Dep’t of Labor and Indus., No. ES.C.6, Meal and Rest Periods for Nonagricultural

Workers Age 18 and Over 3-4.

Ms. Bell testified in her depositions that she did not know whether she had been paid for

missed meal periods. See, e.g., Dkt. 87, Exh.1 at 38, 64, 73. Ms. Cannon’s statement that Ms.

Bell was paid for all missed meal periods was stricken as not based on personal knowledge. Dkt.

32-1 at 5. There is a genuine issue of material fact as to whether Ms. Bell’s missed meal periods

were paid, and the plaintiff has yet to establish what damages she suffered. 

Ms. Bell alleges that even if her meal periods were paid, she was not always allowed a

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meal period. See Dkt. 87, Exh. 1 at 63-64 (not able to eat lunch while alone at the office), 72 (not

able to eat lunch while working in the field). She contends that she was required by the employee

handbook to seek supervisor approval of meal periods, citing page four of the handbook. Dkt. 86

at 10, 21. The handbook does not appear to explicitly impose any such requirement. Ms. Bell

further contends that her work in the field was such that she was required to arrive at clients’

homes at a particular time, leaving no time for her to take a meal period. Dkt. 87, Exh. 1 at 93.

While Addus HealthCare contends that Ms. Bell’s failure to take a meal period constitutes a

waiver, there are genuine issues of material fact as to whether Ms. Bell was actually allowed to

take meal periods while working in the Vancouver office and in the field. The Court should

therefore decline to enter summary judgment on these claims.

2. Rest Periods

Washington employees are entitled to a ten minute rest period, on the employer’s time, for

every four hours of work. WAC 296-126-092(4). Such rest periods need not be scheduled if the

employee is permitted to take intermittent rest periods equivalent to ten minutes. WAC 296-126-

092(5). 

In her deposition, Ms. Bell testified that she was able to take five minute rest breaks while

working in the Vancouver office and that she took more than two in an eight hour shift. Dkt. 87,

Exh.1 at 39. She testified that she was not always able to get the requisite number of rest periods.

Id. at 50. With regard to her work in the field, Ms. Bell testified that she was never truly allowed

a rest period because she was required to keep clients in her sight at all times. Id. at 53, 61, 76. In

her declaration, Ms. Cannon states that Ms. Bell should have been able to take rest breaks in light

of the nature of her work. Dkt. 32-1 at 6. These sworn allegations are sufficient to create a

genuine issue of material fact on the claim for missed rest periods. The motion should therefore be

denied in this respect.

F. ADEQUACY UNDER FEDERAL RULE 23(a)(4)

Ms. Bell contends that she will “fairly and adequately protect the interests of the class” as

required under Federal Rule 23(a)(4). Dkt. 86 at 22. The plaintiff has not yet moved to certify a

class, and the Court should decline to rule on whether the plaintiff satisfies one or more of the

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ORDER

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elements required for class certification.

IV. ORDER

Therefore, it is hereby

ORDERED that the defendant’s Motion for Summary Judgment (Dkt. 76) is DENIED.

The plaintiff’s Motion to Strike (Dkt. 86) is GRANTED in part and DENIED in part as

provided herein. 

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.

ARobert J. Bryan

United States District Judge 

Case 3:06-cv-05188-RJB Document 95 Filed 02/26/07 Page 14 of 14