     Case: 15-11071      Document: 00513800396        Page: 1     Date Filed: 12/16/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                      Fifth Circuit

                                                                                  FILED
                                                                            December 16, 2016
                                     No. 15-11071
                                                                              Lyle W. Cayce
                                                                                   Clerk
ARMOUR ROBINSON, on Behalf of Herself and All Others Similarly
Situated,

              Plaintiff - Appellant

v.

NEXION HEALTH AT TERRELL, INCORPORATED,

              Defendant - Appellee



                   Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 3:12-CV-3853


Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
      The court has carefully considered this Fair Labor Standards Act case in
light of the briefs and excellent oral arguments, and a thorough review of the
record. We conclude that although it is a close question, there are material
fact issues concerning (a) whether the defendant maintained accurate and
complete time records, (b) whether Nexion knew that the plaintiff was working
“off the clock,” and (c) whether and to what extent the plaintiff was instructed



      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-11071     Document: 00513800396      Page: 2   Date Filed: 12/16/2016



                                  No. 15-11071
to and did work “off the clock,” rendering her eligible to receive even more
overtime compensation than she already was paid. The “sham affidavit” rule,
which prevents a party from defeating a motion for summary judgment “using
an affidavit that impeaches, without explanation, sworn testimony,” S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996), is inapposite here
because the plaintiff’s deposition testimony and subsequent affidavit can be
reconciled. In remanding this case for further proceedings, we do not express
an opinion on its ultimate merits. The district court's summary judgment is
REVERSED and REMANDED.




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