(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-5284
Summary Calendar
CHARLES LEE FONTENOT and
WINTER FONTENOT,
Plaintiffs-Appellants,
VERSUS
MOBIL OIL EXPLORATION &
PRODUCING SOUTHEAST, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(91 CV 2707)
July 7, 1993
Before HIGGINBOTHAM, SMITH, AND DeMOSS, Circuit Judges.
PER CURIAM:*
I.
Plaintiff Charles Fontenot alleges that he was injured on May
1, 1991, when he slipped and fell on an oil platform operated by
Mobil Oil Exploration and Producing Southeast, Inc. (hereinafter
Mobil). At the time of the accident, plaintiff was employed by

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Thibeaux & Son Construction, Inc. (hereinafter Thibeaux) for
approximately one year and had been on the Mobil platform for two
days prior to the accident. Fontenot was in the process of
transferring five-gallon containers in plastic crates from one
portion of the platform to another. Although the platform was
soapy and wet from a scrubdown that was being performed by Fontenot
and other Thibeaux employees, plaintiff had successfully
transferred other containers without accident until his feet
slipped out from under him while passing over a pipe that was
permanently suspended one foot above the deck.
II.
Plaintiffs filed suit in the 38th Judicial District Court of
the State of Louisiana, and defendant Mobil removed the matter to
the United States District Court for the Western District of
Louisiana, pursuant to 28 U.S.C. §1441 on the grounds that the case
was governed by federal law contained in the Outer Continental
Shelf Lands Act, 43 U.S.C. §1331 et seq.
Mobil moved and obtained summary judgment on all claims
against it, contending that plaintiff was Mobil's borrowed servant
and that Mobil therefore was immunized from tort liability pursuant
to the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
§905. The district court certified the judgment as a final
judgment pursuant to Federal Rule of Civil Procedure 54(b).

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III.
On appeal from summary judgment, this court reviews the case
de novo. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992),
cert. denied, 113 S. Ct. 82 (1992). In reviewing the grant or
denial of summary judgment, we are bound to apply the same
standards as the district court, Meza v. General Battery Corp., 908
F.2d 1262, 1275 (5th Cir. 1990); that is, we are to determine
whether there is any genuine issue of material fact or whether the
movant is entitled to a judgment as a matter of law. Fed. R. Civ.
P. 56(c). In making that determination we are bound to believe all
the evidence asserted by the non-movant and to draw all inferences
in the light most favorable to that party. Adickes v. S. H. Kress
and Co., 398 U.S. 144 (1970). In other words, it is not the role
of the judge on ruling on a motion for summary judgment to make
determinations regarding credibility, to weigh the evidence, and to
draw inferences from the facts. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1985).
IV.
The question of whether Fontenot was a borrowed servant
is a question of law. Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir.
1977), cert. denied, 436 U.S. 913 (1978). However, the issue
involves factual disputes that require resolution by a fact-finder.
Brown v. Union Oil Co. of California, 984 F.2d 674 (5th Cir. 1993).
Only upon resolution of those disputes may the judge take the facts

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and apply them to the legal standard that determines whether
borrowed-employee status exists as a matter of law.
The legal standard governing borrowed employees was enunciated
by this court in Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th
Cir. 1969). The court suggested nine factors to be evaluated in
determining whether the borrowed employee doctrine applies:
(1) Who has control over the employee and the work he is
performing, beyond mere suggestion of details or cooperation?
(2) Whose work is being performed?
(3) Was there an agreement, understanding, or meeting of the
minds between the original and borrowing employer?
(4) Did the employee acquiesce in the new work situation?
(5) Did the original employer terminate his relationship with
the employee?
(6) Who furnished tools and place for performance?
(7) Was the new employment over a considerable length of time?
(8) Who had the right to discharge the employee?
(9) Who had the obligation to pay the employee?
V.
The threshold question on review of summary judgment is
whether Mobil has carried its initial burden of showing that there
is an absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). In response, Fontenot may not rest
on the mere allegations or denials of his pleadings but must

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present affidavits or other evidence that set forth specific facts
showing that there is a genuine issue for trial.
This court believes that Mobil has clearly discharged its
burden by reference to Fontenot's deposition testimony and to an
affidavit of a Mobil employee who claims to have had supervisory
control over the plaintiff. Plaintiff fails, however, to present
sufficient facts in his affidavit to defeat the summary judgment
motion. Without Fontenot's deposition testimony, this court would
be faced with conflicting affidavits and would have no way of
resolving the dispute without infringing on the fact-finder's role.
Summary judgment "by no means authorizes trial on affidavits." 477
U.S. at 254. However, this court certainly would not be
overstepping its boundaries by accepting what plaintiff himself
testified to during deposition and drawing legal conclusions from
such testimony since, as stated above, the final determination of
borrowed-employee status is a question of law.
VI.
Application of the facts of this case to the Ruiz standard
easily can dispose of all but the first factor. With regard to the
second factor, there is no question that Fontenot was performing
Mobil's work. The sole purpose of Mobil's hiring Thibeaux workers
was to perform work Mobil was not able to accomplish with its own
employees.
The third factor focuses on the understanding between the
nominal and borrowing employers. Plaintiff argues that the

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contract provisions, far from creating a borrowed-servant
relationship, indicate that Thibeaux and Mobil in fact intended
Fontenot to remain a Thibeaux employee. Plaintiff cites Alday v.
Patterson Truck Lines Inc., 750 F.2d 375 (5th Cir. 1985) and West
v. Kerr-McGee Corp., 765 F.2d 526 (5th Cir. 1985), but the district
court properly distinguished those cases on the basis of the
specific prohibition of the borrowed-employee status in those
contracts. Instead, the instant case is nearly identical to
Alexander v. Chevron, U.S.A., 806 F.2d 526, 528 (5th Cir. 1986),
cert. denied, 483 U.S. 1005 (1987), in which the borrowing company
hired the nominal employer "to perform the work as an independent
contractor and not as an employee of Company." The contract in
this case provides that the "[c]ontractor shall do and perform the
work as the independent contractor, free of control or supervision
of company."
Furthermore, this court has recognized that the "reality at
the worksite and the parties' actions in carrying out a
contract...can impliedly modify, alter, or waive" the contract
provisions, whatever the express language might provide. Melancon
v. Amoco Production Co., 834 F.2d 1238, 1245 (5th Cir. 1988).
Given that Thibeaux did nothing more than tell Fontenot to report
to the Mobil platform, the situation indicates that Thibeaux agreed
to Mobil's temporary assertion of control over the Thibeaux
employees. Indeed, Thibeaux was in the business of loaning out its
workers and never attempted to assert any control over its
employees once they were sent to the worksites.

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Regardless of Fontenot's claims to the contrary, this court
considers his acceptance of a job that regularly sent him to
temporary work places as acquiescence to each of those employment
situations. 784 F.2d at 617. Furthermore, Fontenot said during
deposition that he received and followed instructions from a Mobil
supervisor. And according to Mobil's uncontradicted affidavit,
Fontenot had attended at least two safety meetings by his third day
of work at the platform and had at no time objected to Mobil's
authority over him. By failing to complain, plaintiff acquiesced
to his new work environment. 834 F.2d at 1246. There was, then,
not merely constructive acquiescence, but acquiescence in fact.
With regard to the fifth factor, this court has said that it
is not necessary that the lending employer completely sever its
relationship with the employee. 784 F.2d at 617. "Such a
requirement would effectively eliminate the borrowed employee
doctrine as there could never be two employers." Id. Instead, the
focus should be on the lending employer's relationship with the
employee during the employee's period of employment by the
borrower. Id. The only evidence of any continuing relationship
between Fontenot and Thibeaux -- a phone call Fontenot made from
the platform to Thibeaux with regard to his pay -- is insufficient
to rebut the claim that their employment relationship had been
temporarily terminated.
The sixth factor also argues in favor of Mobil. Contrary to
the allegations he makes in his affidavit, Fontenot testified
during deposition that Mobil supplied most of what the Thibeaux

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workers needed to do their work and to clean up. He reported to
Mobil with nothing except his personal safety equipment.
The seventh factor is neutral in this case since Fontenot had
been working for Mobil for only a short period -- two days --
before the date of the accident. Capps v. N.L. Baroid-NL
Industries, Inc., 784 F.2d 615, 618 (5th Cir. 1986), cert. denied,
479 U.S. 838 (1986). In Capps this court stated that "[i]n the
case where the length of employment is considerable, this factor
supports a finding that the employee is a borrowed employee;
however, the converse is not true." Id.
With regard to the eighth factor, plaintiff argues that Mobil
had no authority to discharge him from his employment with
Thibeaux. However, the proper focus is not whether the borrowing
employer can discharge the employee from his original employment,
but whether the borrower has the right to terminate the employee's
services with itself. 784 F.2d at 618. Plaintiff does not argue
that Mobil could not sever their relationship but in fact conceded
during deposition that Mobil could have dismissed him from work on
the platform.
Finally, while it is true that Fontenot was paid directly by
Thibeaux, it is also the case that Mobil reimbursed Thibeaux at a
higher rate for the hours that plaintiff worked. This court has
recognized that this indirect form of payment by the borrowing
employer is all that is necessary to satisfy the ninth requirement.
See, e.g., 834 F.2d at 1246 and 784 F.2d at 618.

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Based on these facts alone, the district court properly could
have granted Mobil's motion for summary judgment even without
resolving the control issue because although this court has
considered control to be the central factor, see, e.g., 834 F.2d at
1244-45 and 784 F.2d at 617, the court's language in Ruiz does not
demand this interpretation: "no one of these factors, or any
combination of them, is decisive, and no fixed test is used to
determine the existence of a borrowed-servant relationship." 413
F.2d at 312. Even in Melancon, this court conceded that although
often considered the central issue, control is not necessarily
determinative. 834 F.2d at 1245. And in Gaudet, this court chose
to deemphasize control, stating that the Ruiz factors "are to be
weighed as appropriate in each particular case." 562 F.2d at 356.
Given that the issue of control is not determinative as a
matter of law, this court may use its discretion in applying the
Ruiz standard and rule that the undisputed facts, notwithstanding
whatever doubts remain with regard to the issue of control, warrant
a conclusion as a matter of law that the evidence does indicate a
borrowed-servant relationship. As this court in Gaudet stated,
although the court may not resolve disputed issues of material fact
in ruling on a motion for summary judgment, it "will not insist
upon the expense and delay of a trial if the overall issue can be
resolved through a preponderance of other factual matters not in
dispute." 562 F.2d at 358. If there are sufficient basic factual
ingredients that are undisputed, even if some of the Ruiz factors

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remain unresolved, the court may grant summary judgment. 784 F.2d
at 616.
Even if the control issue were determinative, we could still
reach the same conclusion given plaintiff's scant factual
presentation. To preclude summary judgment, the mere existence of
a disputed factual issue is insufficient. "The dispute must be
genuine, and the facts must be material." Professional Managers,
Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218, 222 (5th Cir.
1986). Plaintiff's primary claim with regard to the question over
control is simply that he was the "lead roustabout" and was not
under Mobil's supervisory control. Essentially, this assertion
amounts to a claim that he was his own boss. By Fontenot's own
testimony, Thibeaux simply instructed plaintiff about where to go
and to whom to report. If not under Thibeaux's or Mobil's control,
then under whose control was he? His assignment as the lead
roustabout actually serves as illustration of Mobil's authority.
Fontenot was assigned that position only after a Thibeaux employee
consulted with a Mobil employee for approval. Finally, plaintiff
also testified that a Mobil supervisor gave Fontenot orders in the
morning about what was to be done each day. More importantly, it
was a Mobil supervisor that specifically assigned the task
plaintiff was performing at the time the accident occurred.
Given the facts set out in plaintiff's own deposition
testimony and the undisputed facts contained in Mobil's affidavit,
this court believes that no reasonable mind could differ as to the
import of the evidence. Plaintiff attempts in his affidavit to

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create a trace of doubt surrounding the control issue, but the
"mere existence of a scintilla of evidence" will not defeat a
properly supported motion for summary judgment. 477 U.S. at 252.
The district court therefore properly granted defendant's motion
for summary judgment.
AFFIRMED.

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