Opinion
No. 15-11071
12-16-2016
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:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. --------
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 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.