please the court counsel the issue in this case is whether volunteers who are discriminated against or claim to be discriminated against by a state agency and by national charity chartered by the u s government to maintain a system a disaster relief and to assist and coordinate disaster relief with overwhelm state agencies in their disaster services whether such volunteers have any legal recourse against such a claim to discrimination more simply put it's kind of a case that determines where we are in this country in regard to protecting people from discrimination there's two main waters many issues in this case there's two main provisions for providing this any individual or otherwise discriminate and against an individual with respect to his privileges of employment because of such a person limited to employment right yeah if somebody was discriminated against very badly by by the government but it was an employment them pile seven would apply what are you ordinary dictionary meaning of employment is to engage one services it's not to engage one's services and to pay them these these two american red cross has thousands and thousands and thousands of employees that discharge their duties these two defendants american red cross and ross county marines manned agent they engaged these individuals to to help them complete their tasks and to say that you're not an employee there's no definition of employer employment employer under title seven and to say that because you're not paid you can't have  you started out saying the issue here is whether volunteer agencies can can discriminate against people and i guess yes under title seven they can as long as they're not employees right and so we just have to figure out whether their employees are yes you know and that's the issue is what is an employee can  volunteer be an employer employee and my contention is that they clearly can be i mean that when you're using volunteers to accomplish your task to accomplish everything you're set up to do and to say that oh but we can discriminate against those volunteers well we can't discriminate against those paid employees when there is no provision in title seven it says they have to be paid the courts have developed some tests and the courts originally started developing these tests with the economic realities the then became the common law agency tass and for some reason the courts got stuck on payment and compensation but this court in bryson said to be sure we're going to look at between independent contractors and employees and and does reach the issue bryson optimally of volunteers i suppose the that's the case that says volunteers are going to use these five these factors under the under but that doesn't really fit that well does it in a in a volunteer context well if you start looking at the darden factors and you think well how does that all relate in some ways to well it doesn't actually relate unless you do what the door of a prize in court said we're going to look at each of these factors under this factual situation and looking at the occupations involved because there is case law that says you can ignore these factors or one of the more of these factors and in a case of a volunteer you would expect compensation to be a factor or at least a very important factor doesn't that bring us in this circuit of back to the economic realities kind of analysis in which remove reiteration is really important if you're looking at it between trying to determine whether it's an independent contractor or a paid employee yes economic realities are important but also in the context of a volunteer economic realities are important and economic realities are they're not paid but they work just like the employees work it's through them that these two agencies accomplish their task they say taxpayer dollars in the case ross county and they mean thousands and thousands and thousands of dollars for bra for american red cross and that's how they can get their tasks accomplished through these volunteers they don't really work like paid employees do because these sisters pick volunteers have that employees don't do that well and that your clients that's what your clients did here yes but if it if they work when they want to if an employee said i want to work when i want to they want to be there alone right there and the same thing happened to the sisters they weren't there very long not because a one of the work whenever they were wanted to it was when they were available because they volunteered with other and that you say there is no distinction between paid people and volunteers i mean that that is a distinction here that that's just in the facts  undisputed as it is that no that's not the best not to speak of that but she also had to sign hours but just like a paid employee if she had assigned the hours and didn't show up for it they could terminate her she did have some hours were set by her based on her the ability both the sisters i believe had some assigned hours both were available for assignment on disasters and if they didn't show up for is that a disaster like an employee who was supposed to go to the astor if he didn't go to it or she didn't go to it they'd probably be terminated and the same thing would have happened to the sisters if they hadn't they said oh i'm not going to do that disaster on not going to this disaster but the thing is you know there's a lot of cases that are cited in the briefs dealing with various tests but as a matter of fact is the closest case that supports you that somebody like this was treated by a court as an employee i think there are several cases and the one that's the strongest for you the set since the how it says you should analyze these cases i understand my question was about x ok thank you well what is your strongest case were the factual some euro area was some somewhat like this the volunteers were found to be well that was my question yeah i'd like to have an answer and i'm not sure if there are any cases said they were found be ok is that significant there are no cases well there that's because all the cases are based on the facts and you can't say that there will never be a case where the facts don't justify a volunteer being found in poirot you would think somewhere there would be a case there is that there's only a handful of cases out there th issue has not been addressed by a lot of courts all right well how many how many the circuits differ with our test of bryce's how many how many circuits go the other way and require renumeration as  and i may be wrong on that i think there might be more than that ok you have some arguments that are in addition to the employment argument you don't agree that if they're not employees you lose right you know their arguments yes i mean  see it did everything states do it disasters they go it they're called in by the state agency it's like a private school is also acting under color of state law because they provide education like public schools to they're not asked by state agencies to provide them in this case state agencies asked american red cross to come in and help us we're serving the public in a disaster and we need a little bit different from the argument that they're doing what state agencies  do i thought you were making an argument that because they do what states do they should be treated as the state but you're not you're setting to a different argument that yes they're acting as sort of agents of the state well they're not agents because all are acting a behest of the state whatever us of the state but there are ones that's not a state that's not a state function argument that's a state direction argument right well it's sort of a state function argument and how is that i'm not following that because they're performing disaster relief which is a function of the state but then i gave the example of the schools and you said well only way that's different is because they're not being told to do it i mean private schools do exactly what states do all the time but they're not state actors right no they're not and that's because they're not by government it might not have had the agency of the government did it might not have had a name but governments did disaster relief in fact it was the u s government which chartered the american red cross to take over disaster relief for  employment argument and the state law argument but if you assume that that the red cross was not acting under state law and you assume that these are not employees which i'm just assuming hypothetically so i can get to the other issues of what's the remaining issue what is a real and remaining issue on discovery whether or not an extension if you don't have an argument that that that this ross county is is even if even if the red cross is not a state agency you have an argument on eros county right to what to the district court do without argument they granted summary judgment to house and why was that wrong they violated united states constitution as a governmental entity what's the strongest argument that you're not arguing anymore on appeal if they violate a procedural due process is that correct no we're not on on appeal so what they look at remaining are what's the strongest argument among your constitutional arguments in a county calls protection protection and what's that showing that there was an equal protection violation here they treated them differently than similarly situated individuals they terminated them they were the only two volunteers who said we want to continue when they when volunteers were asked if you want to continue they gave a police report came out could hear the who was treated differently they were treated differently because they were the only differently fired home from the other volunteers they were the only two volunteers fired and there was a reason given why they were fired this or that reason it's not an equal protection violation unless there's ok they say you're fired because you wrote us a nasty letter right and that's not an equal protection violation there's no protection it's not irrational fire because here is harassment i thought it was based on their on their on their religion it is based on their religion  all in the same they were all similarly situated and having written letters that so they disapproved they didn't say they disapproved i'm just trying to get a yes strength of your equal protection argument well they didn't say they disapprove they commented on a provision or a project that had been supported by the agency in the past the director said they had a right to do that he expected people to do that he did say i fired him because of that letter but based on everything else he did everything else he did to other volunteers some of whom had criminal backgrounds who did not get terminated if the court can decide there a jury can decide this remember this was mason a motion for summary judgment that brief do you appeal as to own a brief yes i addressed all the issues that ross county raised ok if you want to look at your brief and then look at the if you all divided your human are you going to how are you going to do this yes on the take it just a few minutes six or less minutes and counsel for ross is going to take about nine minutes that's acceptable to the court they've been separately allocated ok fine go ahead maybe briefer than that i just have a few simple points already so i think they're simple points to raise with the court number one counsel for the police has not shown the court in any respect anything actor which would suggest that these individuals are employees he cites none in here in this argument this ok thank you go it was on the side of the right anderson at least i hope so so with respect to employment there's not a single fact in which suggests these individuals were employees in his brief counsel went through and discussed all the  documents and statements made by the apple e's and others where they referred to themselves as volunteers and not employees indeed until this claim this fall they never refer to themselves as employees and he says that's not that's not the term that is powerful evidence what they said about themselves and what others said about them in addition to all the legal tests but the teaching of bryson to be fair is that at least theoretically you can be a volunteer and still fall into the protections of title seven theoretically ok so let me ask this question i'm interested in the argument you made which is about the relationship between the economic relations test and the dardenne factors which bryson says in a volunteer context you should apply those starting factors you seem to argue that there's nothing inconsistent about the cases that decided the economic using the economic relations test with the darden factors that there are in essence the same thing is that fair that's fair we what we try to point out is that in substance there's no difference if you look at the ten darden actors and look at price and the result we believe would be the same we're not saying they're identical because obviously dartle is that ten specific factors and as the court already noted trying to apply those in a volunteer context really doesn't work very well even the bry factors don't seem to work that well i suppose that's the that's our wall well i think that answers the question they don't work well because anything you would look at in a normal context to decide if someone was an employee versus a volunteer suggest clearly indicates that they were volunteers and not employees indeed we say and i think this is true if you held that these individuals were employees there's no volunteer in the country who would not automatically not become an employee there is no factor that you can point to in  in this circumstance or in any other where a volunteer wouldn't be considered employee and that's as the court already indicated the essential difference among others is that they set their own schedule indeed they weren't even volunteering of the record if you look at  e sister marie testified that she had stopped coming to the red cross in the denver of two thousand and eight a year before they were there their status was terminated as as volunteers and that appears at pages fifteen twelve and fifteen thirteen of her deposition so you have two individuals who are not involuntary who are contending that that their employees and they clearly were not so with respect to that issue there's no factor which would indicate to the court that they were employees with respect to the nine hundred eighty three claim counsel indicated we went through in our brief all the three tests that the courts normally apply he says that they aren't the exclusive test but he doesn't cite or give the court any basis for any other test which would classify the red cross as a state actor so that claim fear you aware of any case in which the red cross has been classified as a state no no and and force there been a lot of cases when you're not for profit organization like the red cross you become a target of a lot of different suits and this is a good example where someone how i would characterize it this is a good example of where the red cross the target of what we believe is a frivolous suit with respect to the plane which counsel didn't mention he says well you don't use that word fine but he doesn't point to anything in the and then the complaint which gave the red cross notice of the claim and finally with respect to the motives of the must be cases that claimed you were a federal actor well there are clearly people who claim it but there's no there's no case which holds it funny with respect to the discovery council is incorrect the council didn't even initiate discovery in this case until twenty two days before the first discovery cut off counsel asked for and got two extensions of the discovery period the third request wasn't even opposed by the red cross but the court said enough and the district judge has as the magistrate judge and the district judge upheld that ruling said enough is enough the case must be finally concluded so for all the reasons set forth it please the court my name is jeff stan can assign the attorney for the ross county a may as well as its director david about full you don't argue that that's not a state actor i do not argue that it's not a state actor but i do notes no thank you if i could address mr blackburn's argument that the sisters accomplished a lot for the ball and as volunteers let me first ask you to remember that the red cross and the sisters for lation ship with the red cross is completely separate from their relationship with the ross county a may in so often the sisters in their brief they kind of mix the two together referred to red cross in the i'm at the same time in we ask you to keep in mind that there are two completely different relationships that for purposes of the employment are you correct in for example it page twenty three and thirty of their brief  heard it today at oral argument there's an allegation that that they had a specific work schedule at a r c and ross county in may but when you go to the deposition sites that support that argument that's it seventy three and fourteen thirty one employment arguments that are asserted against you it seems to me that if something is a state actor and it discriminates outside of employment there might still in all nonetheless be three claim for instance the example it jumps to my mind you have these adopt a highway programs and if you said anybody can adopt a mile of the highway except people of this religion they would that wouldn't be employment but it would be probably a constitutional violation would not correct your honor ra isn't there something like that going on here and that's my question as it's seemingly the argument is they you government agency are saying we're going to deal with people except traditional catholics that that is that's their claim right is the claim when and why is that worthy of summary judgment in this case well it failed upon the merits because there was no evidence to support such a claim or that's the basis for the there's no sort of threshold argument it's just that there's not enough evidence of those violations with the exception of the bevan's argument cracked your honor so if i could address the evidence on that these the only evidence in the record from the plaintiffs about a motive against traditional catholics is the sisters testimony that in two thousand and three when mr bethell became the director remember the sisters were volunteering well before he became the director the allegation was that they told him that they are not with the diocese and they claim that he responded i know a lot about you more than you realize period that's it there's no other evidence with regard to their religion or mr bethel's feelings concerning there were little about the fact that they're from different religions on the reason for  buffle testified when he sent the letters to all of the volunteers none of whom had been doing much for years to ask if they were still interested in volunteering and if they would do a background check people said yes we're interested he did he said a separate letter that said they would not be sponsoring anything at the ross county fair the annual fair anymore and so some volunteers didn't respond some respondents said they didn't want to be volunteers and some including the plaintiff said that they training that he's not taken them up on but moreover on the second page the second the last paragraph they're very critical of his decisions and they compare him negatively twice in that paragraph to his predecessors so your honor if the test was was this a good reason or a bad reason to terminate their volunteer employment perhaps some people might say that's not enough but this it's not the test but it might go to whether a jury could believe that something else was going on well they've if it was flimsy enough but they've they've not first of all satisfied pointing somebody who is similarly situated to them because none of the other volunteers were critical so i would suggest that the court  need not get to whether the reason given was pretextual or not but wouldn't there be some situations where the reason is so cruel is that you say there was no reason i mean you have that if they said well you wrote your answer on blue paper so we're not going to renew you that would make the the new prince that something else was going on stronger would not would logically i believe that you have to find that there's a reason to believe that it's not the reason given instead it's the different discriminatory reason then there's just simply no evidence of any ill will or animosity with regard to the plaintiff's religion and quite frankly not much evidence that mr even understood the difference between catholics and traditional catholics again it's all based soley on their claim that they said you're where we're not with the diocese and he said i know a lot about you again six years just there just a couple points first of all the letter started out with of course we wish to be listed as volunteers of ross county emergency management agency in the event of an emergency as what we have been preparing for as volunteers over past ten years sister mike marie fifteen year sister mary cabrini and this has been the object of a motivation in all our training we have taken we also would like to assist in planning and other proactive measures if we had done with your two predecessors under the reeves case i think they have a right to take this issue to a jury because the jury certainly has a right to disbelieve the pretext that mr buffle gave her foreign embraced on everything else the other thing regarding discovery and just real quick on it we did start discovery late it was an unusual case there was a motion to dismiss there was a motion to i think was called a motion to partially dismiss hadn't had not been ruled upon so who is the judge that made this decision and i'm drawing mental blank and that's all right ok what we took issue with was as we did get an extension for discovery although it was a limited and they said well we're going to limit you to certain depositions we didn't get all discovery right up against there were times when we said here we have thirty i think of one time i said i got thirty nine dates or next two months can i take these depositions none of those people were provided the judge did you file a motion to compel discovery we did file a motion to compel we filed a we filed notices of depositions our motion to compel was ruled moot once the court granted an extension but then the same thing happened with the reason why there was a consent agreement to try to get one last continue its it was because the red cross hadn't produced the people they said they were produced and i think they were free to appeal to the donald your motion to compel discover produced the other thing was we found out in depositions taken days before the the deadline we didn't get all the documents two different witnesses said we had documents but we didn't give into that was what  e our problem with discovery was while i was upset when they could fact that the court limited us what i'm war upset about is we didn't get what we asked for and discovery you're supposed to look at cases are to be decided on their merits you look at the fairness of everything in the court has taken it upon itself to say look because you started it so late your fault your fault your fault your fall doesn't say anything about them not providing people for witnesses not providing all their documents for shit your argument place will be submitted please call the next case