1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0280p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

SISTER MICHAEL MARIE; SISTER MARY CABRINI, 

Plaintiffs-Appellants, 

v. 

AMERICAN RED CROSS; ROSS COUNTY EMERGENCY 

MANAGEMENT AGENCY; MARY MCCORD; DAVID 

BETHEL, 

Defendants-Appellees. 

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No. 13-4052 

Appeal from the United States District Court 

for the Southern District of Ohio at Columbus. 

No. 2:11-cv-00474—Michael H. Watson, District Judge. 

Argued: August 7, 2014 

Decided and Filed: November 14, 2014 

Before: ROGERS and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.

_________________ 

COUNSEL 

ARGUED: Thomas I. Blackburn, BUCKLEY KING LPA, Columbus, Ohio, for Appellants. F. 

Joseph Nealon, ECKERT, SEAMANS, CHERIN & MELLOTT, LLC, Washington, D.C., for 

American Red Cross Appellees. Jeffrey A. Stankunas, ISAAC WILES BURKHOLDER & 

TEETOR, LLC, Columbus, Ohio, for Ross County Appellees. ON BRIEF: Thomas I. 

Blackburn, BUCKLEY KING LPA, Columbus, Ohio, for Appellants. Jeffrey W. Larroca, 

Michael A. Graziano, ECKERT, SEAMANS, CHERIN & MELLOTT, LLC, Washington, D.C., 

for American Red Cross Appellees. Jeffrey A. Stankunas, Julia R. Baxter, ISAAC WILES 

BURKHOLDER & TEETOR, LLC, Columbus, Ohio, for Ross County Appellees. 

 

The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of 

Kentucky, sitting by designation. 

>
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 2

_________________ 

OPINION

_________________ 

 GREGORY F. VAN TATENHOVE, District Judge. Under what circumstances are 

volunteers protected from employment discrimination by Title VII? That is the primary, though 

not only, question presented in this case. Sister Michael Marie and Sister Mary Cabrini were 

disaster relief volunteers for the American Red Cross and the Ross County Emergency 

Management Agency for an extended period of time, but have not shown that they received 

compensation, obtained substantial benefits, completed employment-related tax documentation, 

were restricted in their schedule or activities, or were generally under the control of either 

organization through any of the other incidents of an agency relationship. Therefore, their 

volunteer relationship does not fairly approximate employment and is not covered by Title VII. 

Nor, as will be explained, were the Sisters’ constitutional rights violated. Accordingly, the 

district court’s dismissal of the Sisters’ claims shall be AFFIRMED. 

I 

 Appellants Sister Michael Marie and Sister Mary Cabrini are traditional Catholic Nuns 

and part of the Order of the Missionaries of the Sacred Heart. As such, the Sisters wear habits 

and crosses and hold some beliefs that are distinct from the Roman Catholic Church. Sister 

Marie and Sister Cabrini indicate that, as an expression of their devotion to God and in the 

practice of their traditional Catholic faith, they have dedicated their lives to assisting the poor 

and serving the good of the community. The Sisters have no insurance, and neither has had any 

personal income for a decade prior to the filing of this suit. They live together with another adult 

in a home in Clarksburg, Ohio, where the Order of the Missionaries of the Sacred Heart provides 

for their needs. 

 In addition to performing various functions for the Missionaries of the Sacred Heart, the 

Sisters also serve as volunteers for certain community organizations including the Appellees, 

First Capital District Chapter of American Red Cross and the Ross County Emergency 

Management Agency (RCEMA). The Red Cross is a non-profit corporation chartered by the 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 3

United States Congress to perform certain charitable functions including disaster relief. The Red 

Cross is made up of eight divisions across the United States, which are further subdivided into 

several regional and then community chapters. 

 Sister Marie began volunteering with the First Capital District Chapter of the American 

Red Cross in Chillicothe, Ohio, in 2000. As part of her service with the Red Cross, Sister Marie 

performed administrative office tasks, assisted with blood services, and was available to respond 

to disasters should any arise. She did not have a set schedule, but volunteered in the office on a 

different day each week. Sister Cabrini began volunteering with the same chapter of the Red 

Cross in 2006. On Saturday evenings of each week, Sister Cabrini served in an on-call capacity 

should an emergency situation arise. 

 Upon beginning their service, the Sisters received the Red Cross volunteer handbook. 

The handbook distinguishes an employee from a volunteer, which is defined as “an individual 

who, beyond the responsibilities of paid employment, freely assists the Red Cross in the 

accomplishment of its mission without expectation or receipt of compensation.” [Red Cross 

Resp. Br. at 18-19]. Neither of the Sisters received a regular salary for their work, nor were they 

the beneficiaries of medical, dental, or vision insurance. The Sisters were not eligible to 

participate in any retirement plan through the Red Cross and did not receive or complete W-2, 

W-4, or I-9 forms or pay income taxes as a result of their relationship with the Red Cross. 

Nevertheless, the Sisters claim that they still received benefits from their participation with the 

Red Cross. They point to their eligibility for workers’ compensation and life insurance, access to 

training and educational programs, opportunities for networking and improved standing in the 

community, in-kind travel donations and reimbursements, and access to disaster victims so that 

they can serve them as part of their religious beliefs. 

 Supervisors at their chapter of the Red Cross formally evaluated the Sisters’ performance. 

In each of these evaluations the Sisters were designated as volunteers, but received positive 

reviews. In fact, the Sisters claim that they were viewed so positively that their supervisors 

recommended them for promotions within the organization. These promotions would not have 

entitled the Sisters to any salary, but would have altered their roles and responsibilities. 

However, the Sisters claim that Appellee Mary McCord, the Executive Director of the First 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 4

Capital District Chapter of the American Red Cross, refused to allow these promotions. The 

Sisters indicate that based on personal interactions and representations from other workers in the 

organization, McCord was biased against them because she is a Roman Catholic and held 

negative views toward traditional Catholics like the Sisters. 

 The Sisters initiated an internal investigation into the situation, which they claim resulted 

in the discovery of a prejudicial email as well as an admission on the part of Red Cross personnel 

that mistakes had been made and that the Sisters were qualified for a promotion. However, the 

Sisters were not promoted and, instead, the Red Cross sent them a letter on November 5, 2009 

that terminated their working relationship. On November 11, 2009, the Sisters appealed this 

determination, and on November 20, the Red Cross denied the appeal. 

 During the same period of time, the Sisters were also volunteers for the Ross County 

Emergency Management Agency. RCEMA also assists victims during emergencies and 

disasters. Additionally, the organization supports fire and police departments and coordinates 

between local, state, and federal emergency management agencies, including the Federal 

Emergency Management Agency (FEMA). Appellee David Bethel is the Director of RCEMA, 

which is also overseen by a board of directors that includes, among others, the Executive 

Director of the First Capital District Chapter of the American Red Cross, Mary McCord. 

 Sister Cabrini began volunteering with RCEMA in 1994. She indicates that during her 

time there, she engaged in administrative tasks in the office, including work on maps and 

manuals. Further, Sister Cabrini assisted in teaching classes on disaster preparedness to a 

nursing home. Sister Marie began volunteering with RCEMA in 2000. She indicates that she 

assisted the organization with accounting, mail, periodic drills, and state evaluations. The Sisters 

also claim to have attended monthly meetings of the Ross County Fire and Rescue Association 

(RCFRA) on behalf of RCEMA. The RCFRA is a not for profit corporation that reviews 

emergency plans of agencies within Ross County to avoid conflicts with fire department policies. 

RCFRA also sponsored a booth at the annual Ross County Fair and the Sisters indicate that they 

volunteered at that booth on behalf of RCEMA. In carrying out these duties, the Sisters do not 

appear to have had a set schedule and were not compensated with a regular salary or traditional 

benefits. The Sisters do indicate that, as a result of their association with RCEMA, they received 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 5

the opportunity for grants, access to several trainings, workers’ compensation insurance, funeral 

insurance coverage, and liability insurance coverage in the event that they were harmed while 

they were participating in disaster relief services on RCEMA’s behalf. 

 On September 2, 2009, David Bethel sent a letter to all RCEMA volunteers to inform 

them that they would no longer be volunteering at special events for RCFRA. Bethel sent 

another letter to all RCEMA volunteers on September 8, indicating that the organization was 

updating its records and wanted to gauge their interest in remaining volunteers. He also 

requested permission to conduct police background checks on each volunteer. At the time 

Bethel sent this letter, RCEMA had sixteen volunteers. After Bethel removed those who failed 

to respond to the letter, did not wish to remain a volunteer, or did not consent to a police 

background check, only five volunteers remained, including Sister Cabrini and Sister Marie. The 

Sisters responded by return letter on September 23, 2009. In that letter, they expressed 

disappointment in the management of the organization and that their skills had not been better 

used under Bethel’s direction. However, they also expressed their interest in continuing to 

volunteer with RCEMA and consented to a police background check. On October 5, 2009, 

Bethel responded to the Sisters that, “[i]t is apparent that you are dissatisfied with the operation 

of our office. I feel it is in the best interest of the County Emergency Management Agency to 

terminate your volunteer status with our office.” [Corrected Appellant Br. at 137]. The Sisters 

then composed a letter to the Ross County Board of Commissioners once again stating their 

interest in remaining volunteers of RCEMA and seeking to resolve what they characterized as a 

misunderstanding of their intent. The Board of Commissioners did not respond. 

 On November 5, 2009, the Sisters filed a discrimination charge against RCEMA and the 

Red Cross with the Ohio Civil Rights Commission and the Equal Employment Opportunity 

Commission. OCRC dismissed the Sisters’ charges on May 13, 2010, finding that it had no 

jurisdiction because the Sisters were not employed by RCEMA or the Red Cross. OCRC also 

denied reconsideration of that determination, though it did note that the Sisters had fifteen days 

to seek review of the decision through the EEOC. The record does not provide any indication 

that the Sisters availed themselves of this review. On December 20, 2010, the Sisters did request 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 6

a right-to-sue letter from the EEOC, but the EEOC informed them that it does not provide a 

Notice of Right to Sue Letter in a jurisdictional dismissal by the OCRC.1 

 The Sisters initiated the instant action on June 1, 2011. They asserted claims under Title 

VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq., and the Ohio Civil Rights Act for 

religious discrimination, retaliation, and harassment. The Sisters also brought claims under 42 

U.S.C. § 1983 for violations of their constitutional rights of, among other things, free speech, 

free exercise of religion, and equal protection under the law. Finding that the Sisters had not 

sufficiently alleged that the American Red Cross and Mary McCord were state actors, the district 

court dismissed the § 1983 claims against them. In the same order the court also dismissed any 

possible Bivens claims that the Sisters might have asserted because the Amended Complaint did 

not give notice of such claims. Finally, the district court granted the Appellees’ subsequent 

motion for summary judgment, finding that there was no dispute of material fact that Bethel or 

RCEMA violated the Sisters’ constitutional rights and that, because they were not employees of 

either RCEMA or the Red Cross, the Sisters could not maintain a claim against them under Title 

VII. The Sisters now appeal these decisions to this court. 

II 

A 

 Sister Marie and Sister Cabrini argue that the district court’s order granting summary 

judgment should be reversed because it is based on an erroneous conclusion that they were not 

employees of the Red Cross or RCEMA. This court reviews a lower court’s grant of summary 

judgment de novo. Bultema v. United States, 359 F.3d 379, 382 (6th Cir. 2004). In deciding a 

motion for summary judgment, the court must view the evidence and draw all reasonable 

inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986). The burden is initially on the moving party to inform “the district 

court of the basis of its motion, and identify[] those portions of ‘the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it 

believes demonstrates the absence of a genuine issue of a material fact.” Celotex Corp. v. 

 1

The district court did not reach the issue of whether the Sisters’ failure to obtain a right to sue letter bars 

their claims, and the parties do not discuss it on appeal. 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 7

Catrett, 477 U.S. 317, 323 (1986). The moving party may make this showing by demonstrating 

the absence of evidence to support one of the essential elements of the nonmoving party’s claim. 

Id. at 322-25. Once this burden is met, the nonmoving party bears the “burden of producing in 

turn evidence which would support a jury verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 256 (1986). In the absence of a genuine issue of material fact, it is appropriate for the court 

to determine employment status as a matter of law. Bryson v. Middlefield Volunteer Fire Dep’t,

Inc., 656 F.3d 348, 352 (6th Cir. 2011) (citing Simpson v. Ernst & Young, 100 F.3d 436, 439 (6th 

Cir. 1996)). 

 Title VII of the Civil Rights Act of 1964 prohibits, among other things, religious 

discrimination against individuals in the context of the employment relationship. Pursuant to 

Title VII, it is impermissible “for an employer to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any individual with respect to his compensation, 

terms, conditions, or privileges of employment, because of such individual’s . . . religion.” 

42 U.S.C. § 2000e-2(a)(1) (2012). An employer is defined as “a person engaged in an industry 

affecting commerce who has fifteen or more employees for each working day in each of twenty 

or more calendar weeks in the current or preceding calendar year, and any agent of such a 

person.” 42 U.S.C. § 2000e(b) (2012). 

 The parties agree that the critical issue is whether the Sisters were “employees” of the 

Red Cross or RCEMA. For purposes of Title VII, an employee is “an individual employed by an 

employer.” 42 U.S.C. § 2000e(f) (2012). The circularity of this definition renders it quite 

unhelpful in explaining whom Congress intended to include as an employee in the workplace. 

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (noting that the same definition of 

“employee” in the ERISA statute is “completely circular and explains nothing”). Therefore, we 

assume “that Congress intended to describe the conventional master-servant relationship as 

understood by common-law agency doctrine.” Id. at 322-23. Toward that end, the Supreme 

Court has stated: 

In determining whether a hired party is an employee under the general common 

law of agency, we consider [1] the hiring party’s right to control the manner and 

means by which the product is accomplished. Among the other factors relevant to 

this inquiry are [2] the skill required; [3] the source of the instrumentalities and 

tools; [4] the location of the work; [5] the duration of the relationship between the 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 8

parties; [6] whether the hiring party has the right to assign additional projects to 

the hired party; [7] the extent of the hired party’s discretion over when and how 

long to work; [8] the method of payment; [9] the hired party’s role in hiring and 

paying assistants; [10] whether the work is part of the regular business of the 

hiring party; [11] whether the hiring party is in business; [12] the provision of 

employee benefits; [13] and the tax treatment of the hired party. 

Id. at 323-24 (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52) (citing 

Restatement (Second) of Agency § 220(2) (1958); Rev. Rul. 87-41, 1987-1 C.B. 296, 298-99). 

 In Bryson v. Middlefield Volunteer Fire Dep’t, Inc., we determined that volunteers 

potentially may be employees for the purposes of Title VII. 656 F.3d 348, 353 (6th Cir. 2011). 

Further, we concluded that the so-called Darden factors from the common law agency test are 

the appropriate means of measuring whether a volunteer merits the protections of employment 

discrimination laws. Id. at 354. Admittedly, this test is not neatly applied to the volunteer 

context. The original purpose of the factors of the common law agency test adopted in Darden

was for use “[i]n determining whether one acting for another is a servant [employee] or an 

independent contractor.” Restatement (Second) of Agency § 220(2) (1958). However, because 

volunteers do not usually receive compensation in the traditional sense, they are quite differently 

situated than either employees or independent contractors, between which the common law 

agency test is designed to differentiate. See O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 

1997) (quoting Graves v. Women’s Prof’l Rodeo Assoc., Inc., 907 F.2d 71, 73-74 (8th Cir. 

1990)) (noting that the common law agency test is designed for use “‘only in situations that 

plausibly approximate an employment relationship,’” and “[w]here no financial benefit is 

obtained by the purported employee from the employer, no ‘plausible’ employment relationship 

of any sort can be said to exist because . . . ‘compensation . . . is an essential condition to the 

existence of an employer-employee relationship’”). 

 Because of these differences, all of the other circuits to have considered the 

circumstances under which a volunteer is an employee have exalted remuneration as an 

independent antecedent inquiry, such that the traditional common law agency analysis is only 

employed when the volunteer relationship fairly approximates an employment relationship.2

 In 

 2

Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 435 (5th Cir. 2013) (noting that the Second, 

Fourth, Eighth, Tenth, and Eleventh Circuits have adopted the threshold-remuneration test); Waisgerber v. City of 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 9

Bryson, we expressly rejected this threshold remuneration test in favor of full application of the 

common law agency test, requiring that “‘all of the incidents of the relationship must be assessed 

and weighed with no one factor being decisive.’” 656 F.3d at 354 (quoting Darden, 503 U.S. at 

324). Thus, in this circuit, remuneration is not an independent antecedent requirement, but rather 

it is a nondispositive factor that should be assessed in conjunction with the other Darden factors 

to determine if a volunteer is an employee. However, as the Bryson panel remanded the action to 

the district court for further consideration, it did not provide further guidance to courts as to how 

to apply the factors in light of their incongruity with the volunteer context. 

 In this case, the district court, as instructed by Bryson, weighed all of the common law 

agency factors, including remuneration, and determined that the Sisters were not employees of 

the Red Cross or RCEMA. Though the Red Cross is somewhat critical of this test in the briefs, 

the main dispute between the parties on appeal is not whether the district court applied the proper 

test, but whether it weighed all of the factors of that test correctly. The Sisters argue that the 

district court erred by treating every factor of the analysis as equal rather than varying the 

“degree of importance” of each factor depending on the occupation and factual context in which 

the Sisters performed their services. [Appellant Reply Br. at 10-11]. In their view, the fact that 

they were volunteers means that factors related to remuneration, such as compensation and tax 

treatment, are not important in the common law analysis because one would not expect a 

volunteer to satisfy these factors whether or not she is an employee. 

 However, in making these arguments, the Sisters ask this court to engage in the same 

type of behavior that Bryson repudiated. As discussed, other circuits have structurally modified 

the common law agency test for the volunteer context. While other circuits have altered the test 

in such a way as to make remuneration categorically more important, the Sisters seek 

modification of the opposite sort, such that remuneration would be categorically weighted less 

when a volunteer is being considered. Bryson rejected these types of modifications and 

established a principle that would seem to cut both ways. If Darden factors are to be applied, 

 Los Angeles, 406 F. App’x 150, 152 (9th Cir. 2010); York v. Assoc. of Bar of City of N.Y., 286 F.3d 122, 126 (2d Cir. 

2002); McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir. 1998); Llampallas v. Mini-Circuits, 

Lab, Inc., 163 F.3d 1236, 1243-44 (11th Cir. 1998) (“[O]nly individuals who receive compensation from an 

employer can be deemed “employees” under the statute.”); O’Connor, 126 F.3d at 115-16 (2d Cir. 1997); 

Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993); Graves, 907 F.2d at 71 (“Compensation 

by the putative employer to the putative employee in exchange for his services is not a sufficient condition, but it is 

an essential condition to the existence of an employer-employee relationship.”). 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 10

remuneration should not be exalted to a threshold factor nor should it be categorically discarded 

simply because an individual is a volunteer. On the contrary, Bryson expressly acknowledges 

that even in the volunteer context “remuneration is a factor to be considered” and that “several of 

the factors listed in Darden and Reid relate to financial matters.” Bryson, 656 F.3d at 354-55 

(citing Ware v. United States, 67 F.3d 574, 577-78 (6th Cir. 1995)). 

 It is true that Bryson states that “[t]he degree of importance of each factor [will vary] 

depending on the occupation and the factual context in which the services are performed.” Id. at 

354 (citations omitted). However, when viewed in context, Bryson’s admonition has less to do 

with the fact that the Sisters were volunteers than what they were doing as volunteers and the law 

under which they brought their claim. See Ware, 67 F.3d at 578 (contrasting the application of 

the Darden factors as applied under the Copyright Act and ERISA and stating that “it seems 

clear that the relative weight given each factor may differ depending upon the legal context of 

the determination”). That is to say, some factors that are less helpful in determining whether a 

disaster relief worker is an employee under Title VII might be more helpful in making the same 

determination when a different type of work or statute is at issue. 

 The factors most closely related to remuneration and financial matters—the method of 

payment, the provision of employee benefits, and tax treatment—are particularly relevant here. 

Thus, in considering the application of the common law agency test to the facts of this case, we 

first consider these financial factors. 

1 

 Concerning method of payment, it is undisputed that the Red Cross and RCEMA did not, 

at least in the traditional sense, pay the Sisters at all. In this fact the first sign of the incongruity 

between the common law agency test and the volunteer context is apparent. That the Sisters 

received no payment moves the court no closer to a choice between employees or independent 

contractors, who both receive payment in some form for their labor. However, whether the 

Sisters are independent contractors or not is largely an academic point. The real object of 

applying the Darden factors is to determine “whether a hired party is an employee under the 

general common law of agency.” Darden, 503 U.S. at 323 (emphasis added) (quoting Reid, 

490 U.S. at 751). Regardless of how volunteers or independent contractors are usually paid, 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 11

employees generally receive a regular salary. See Janette v. Am. Fid. Grp., Ltd., 298 F. App’x 

467, 475 (6th Cir. 2008) (citing Weary v. Cochran, 377 F.3d 522, 527 (6th Cir. 2004)). That the 

Sisters did not receive remuneration in this manner weighs against a finding that they are 

employees of the Red Cross or RCEMA. 

2 

 The Red Cross and RCEMA not only did not provide a regular salary to the Sisters, but 

they also did not provide them with traditional benefits such as medical, vision, or dental 

insurance. As these types of benefits are often present in the employment relationship, their 

absence also weighs against a finding that the Sisters were employees. Nevertheless, due in part 

to the complexities of the modern economy, some courts have found a jury question as to the 

issue of remuneration and benefits even in the absence of traditional benefits. For example, in 

Bryson, the court determined that this factor could suggest that volunteer firemen were 

employees when they received workers’ compensation insurance coverage, training, gift cards, 

personal use of the fire department facilities and assets, access to emergency funds, certain 

retirement payments, and even, under some circumstances, an hourly wage. 656 F.3d at 355; see 

also Pietras v. Bd. of Fire Comm’rs, 180 F.3d 468, 473 (2d Cir. 1999) (finding that a jury could 

conclude that a fireman obtained significant remuneration when he received, among other things, 

a retirement pension, life insurance, and some medical benefits); Haavistola, 6 F.3d at 221-22 

(finding that a jury could conclude that firemen obtained significant remuneration when they 

received, among other things, group life insurance, tuition reimbursement for courses in 

emergency medical and fire service techniques, tax-exemptions, reduced rates on 

commemorative license plates, and an opportunity to obtain paramedic certification). The jobrelated benefits that these firemen received bear a resemblance to traditional forms of 

compensation for employees because they include presently vested benefits with real financial 

value given as consideration for an ongoing relationship and continued service. See York v. 

Assoc. of Bar of City of N.Y., 286 F.3d 122, 126 (2d Cir. 2002). As a result, these benefits are 

not only real and tangible, but also do not resemble lump-sum or incidental payments that 

independent contractors might receive for their work. Id. 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 12

 Some courts have gone further, recognizing that even non-financial benefits can cause the 

remuneration factors to weigh in favor of the employment status in some situations. In Rafi v. 

Thompson, the court found that some volunteers might be able to show a direct connection 

between their volunteer service and access to specific job opportunities such that “a clear 

pathway to employment . . . might constitute sufficient compensation to bring . . . volunteers 

under Title VII.” No. 02-2356, 2006 WL 3091483, at *1 (D.D.C. Oct. 30, 2006). On the other 

hand, arguments about enhanced career opportunities, access to training, or possible future 

employment have been rejected by courts when these opportunities are accessible to the public 

generally or when they are too speculative. See Graves, 907 F.2d at 73 (noting that the career 

advancement opportunities could not be considered remuneration in part because they were 

generally available even to non-members); Moran v. Harris Cnty., No. H-07-582, 2007 WL 

2534824, at *1 (S.D. Tex. Aug. 31, 2007) (finding that free certification classes, networking 

opportunities, and job experience benefits were too speculative to count as remuneration); 

Holder v. Town of Bristol, No. 3:09-CV-32PPS, 2009 WL 3004552, at *6 (N.D. Ind. Sept. 17, 

2009) (concluding that the prospects of future employment were too speculative to be considered 

as remuneration). The difference between the two situations may relate to control. In situations 

where there is a sufficiently probable and clear path to employment from volunteer to paid 

position, the volunteer is economically dependent on the employer in a manner not found in 

more speculative contexts. 

 Even construing the evidence in the light most favorable to the Sisters, the job-based 

benefits they claim to have derived from volunteering with the Red Cross and RCEMA are very 

much unlike those traditionally received by employees or found to constitute remuneration in the 

aforementioned cases. Many of the benefits, such as workers’ compensation insurance 

eligibility, liability insurance for injuries sustained during service, in-kind donations, and 

reimbursements for travel on organization business, are contingent or were simply incidental to 

their work with the organization rather than valuable financial consideration exchanged in return 

for services.3

 Additionally, the educational opportunities, possibility for promotions, increased 

 3

The benefit that most closely resembles the type of valuable remuneration received by employees is the 

eligibility for life insurance that the Sisters claim to have had through the Red Cross. However, the life insurance 

eligibility was actually through the association of the Red Cross with the Ross County Fire and Rescue Association. 

[R. 129 at 22]. Even from this record it appears that one may become associated with RCFRA in other ways aside 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 13

standing in the community, networking opportunities, opportunities for grants, and access to 

opportunities to serve are speculative and insufficient to constitute remuneration here. The 

record also reflects that the educational opportunities and the ability to assist victims of disasters 

were generally available to the Sisters, who would not have needed to be a part of either 

organization to participate. Further, though the Sisters sought promotions in the organizations, 

they were not seeking to achieve a paid position as a result of their education or promotion. In 

short, the Red Cross and RCEMA did not provide the Sisters with the type of benefits usually 

provided to employees. Consequently, this factor weighs against the Sisters. 

3 

 Additionally, as it relates to financial matters, it is noteworthy that none of the parties 

treated the Sisters as employees for income tax purposes. The Sisters did not receive or 

complete W-2, W-4, or I-9 forms or pay income taxes as a result of their relationship with the 

Red Cross or RCEMA. As a result, this factor, like the others related to remuneration and 

financial matters, also weighs against a finding that they are employees. 

4 

 The right to control of the means and manner of performance, the right to assign 

additional projects, and the discretion over when and how long to work are Darden factors that, 

under these circumstances, are related to one another and bear very strongly on the issue of 

control. “The crux of Darden’s common law agency test is ‘the hiring party’s right to control the 

manner and means by which the product is accomplished.’” Weary, 377 F.3d at 525 (quoting 

Darden, 503 U.S. at 323). That is not to say that this factor is dispositive, as “‘all of the 

incidents of the relationship must be assessed and weighed with no one factor being decisive.’” 

Bryson, 656 F.3d at 354 (quoting Darden, 503 U.S. at 324); see also Clackamas 

Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 450-51 (2003). However, “this Court has 

repeatedly held that the ‘employer’s ability to control job performance and the employment 

opportunities of the aggrieved individual’ are the most important of the many factors to be 

considered.” Janette, 298 F. App’x at 472 (citing Simpson, 100 F.3d at 442); Trs. of Resilient 

 from volunteering with the Red Cross. For example, the Sisters indicated that they were also associated with the 

RCFRA through RCEMA. [Corrected Appellant Br. at 25]. At any rate, the receipt of life insurance eligibility 

alone would not be enough to cause this factor to weigh in favor of finding the Sisters to be Red Cross employees. 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 14

Floor Decorators Ins. Fund v. A & M Installations, Inc., 395 F.3d 244, 249 (6th Cir. 2005); 

Johnson v. City of Saline, 151 F.3d 564, 568 (6th Cir. 1998). Indeed, the idea of control is 

“embodied in many of the specific factors,” the analysis of which “reflects upon, and is relevant 

to, this core issue of control.” Weary, 377 F.3d at 525. 

 The Sisters argue that RCEMA and the Red Cross exercised control over the means and 

manner of their performance because they provided them with a set schedule and had the power 

to assign their volunteer tasks. However, this assertion is largely unsupported by the facts of the 

record. There is no evidence that RCEMA ever required the Sisters to operate on a fixed 

schedule or closely controlled their work when they volunteered. While there is evidence that, 

on occasion, the Red Cross provided the Sisters with a set schedule of volunteer times, the 

Sisters expressly note that these times were at least somewhat based on their personal 

availability. Sister Marie noted that she volunteered regularly for the Red Cross, “when [she] 

was available.” [R. 78 at 52-53]. Sister Cabrini was on call from her home to respond to 

disasters every Saturday and only reported in “if [she was] not available.” [R. 76 at 18]. 

 In Janette, a plaintiff argued to this court that she should be considered an employee 

because the employer set her schedule, required her to perform certain assignments, and could 

assign additional tasks for her to complete. 298 F. App’x at 473, 475. This court held that these 

facts were not dispositive because, although the plaintiff had shown that her employer had input 

into these areas, she retained significant discretion over her own time and work. Further, the 

court found that the plaintiff had failed to produce any evidence that the schedule and 

assignments of her employer were any more than requests that she had the right to refuse and 

negotiate. Id. at 475. The same is true here. The only evidence showing that the Red Cross 

directed any of the Sisters’ activities also reveals that the Sisters retained considerable discretion 

and flexibility in when and how they volunteered. These facts show that either the schedule and 

duties were crafted to accommodate the Sisters’ availability or the Sisters could simply refuse 

times or tasks assigned to them. This would, after all, be expected as the Sisters are volunteers 

working relatively infrequently, in rotating or on-call capacities, and on tasks that are easily 

transferrable among volunteers. There is a much different degree of control when an individual 

must work at a time definitively set by an employer for its own benefit than when the individual 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 15

has the flexibility to craft her schedule as it suits her. In this way, the Sisters bear little similarity 

to employees. 

 The Sisters argue that if they had not worked when assigned, accepted the projects given 

to them, or carried out their duties in the manner directed by RCEMA and the Red Cross, they 

would have been terminated. In their view, this demonstrates that RCEMA and the Red Cross 

did exercise a measure of control over them that is like that of an employer. As an initial matter, 

this does not appear to be altogether accurate from the record. According to Sister Marie’s 

deposition, she had not reported to the Red Cross office for over a year before she was 

terminated. Nevertheless, she continued to consider herself a volunteer for the Red Cross. The 

Red Cross evidently shared this belief or it would not have seen the need to terminate its 

volunteer relationship with her. Thus, the Sisters’ representations that their volunteer status 

depended on their adherence to the directions of the Red Cross and RCEMA as to when and how 

to work are unsubstantiated. 

 This argument also reveals another important and pronounced difference between 

volunteers like the Sisters and employees. An employer’s ability to terminate a non-compliant 

employee, which is perhaps an employer’s greatest source of control, is meaningful because the 

employee stands to lose not only her job, but also the source of income upon which she depends. 

This notion that control is related to compensation was at the heart of the economic realities test 

previously employed by this circuit to determine employment status. The economic realities test 

looked “to whether the putative employee is economically dependent upon the principal or is 

instead in business for himself.” Lilley v. BTM Corp., 958 F.2d 746, 750 (6th Cir. 1992) 

(emphasis added) (citations omitted); see also Shah v. Deaconess Hosp., 355 F.3d 496, 499 (6th 

Cir. 2004). 

 Though we make no attempt to resurrect the economic realities test from the grave, its 

central teaching remains instructive to the application to the Darden factors. Indeed, we have 

previously recognized that there is at best “no material difference,” Simpson, 100 F.3d at 442, 

and at worst, “minimal” substantive differences between the economic realities test and the 

common law agency test. Shah, 355 F.3d at 499 (citations omitted). In Bryson, we tacitly 

acknowledged this fact when we noted that “several of the factors listed in Darden and Reid
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 16

relate to financial matters.” 656 F.3d at 354 (citing Ware, 67 F.3d at 577-78). The economic 

reality is that when volunteers work without traditional forms of remuneration like salary and 

benefits, employers are generally without leverage to control that volunteer’s performance. And 

control is “[t]he crux of Darden’s common law agency test.” Weary, 377 F.3d at 525 (quoting 

Darden, 503 U.S. at 323). 

 Even if RCEMA and the Red Cross would have threatened to sever their volunteer 

relationship with the Sisters upon their refusal to adhere to a set schedule or to accept the tasks 

given them, this does not necessarily show that the agencies exercised any real control over the 

Sisters. Unlike most employees, the Sisters are not economically reliant on RCEMA or the Red 

Cross in any real or measurable way. Since economic dependence is one of the primary sources 

of employer control over employees, this fact significantly undercuts the Sisters’ argument that 

they were under the control of either agency. 

 The record does not reflect that RCEMA or the Red Cross possessed the right to assign 

additional projects, to decide when and how long the Sisters worked, or to control the means and 

manner in which they worked. As a result, these three important factors weigh heavily against a 

finding that the Sisters were employees. 

5 

 The Sisters have been associated with the Red Cross and RCEMA for several years and 

argue that the duration of their relationship weighs in favor of finding them to be employees. 

However, in evaluating this factor the court “is not concerned with the length of the relationship, 

but rather, when hired, whether the relationship was one of a long-term at-will employee or one 

to complete a particular task in a specified time-frame.” Janette, 298 F. App’x at 474 (citations 

omitted). The Sisters primarily represent their involvement with the Red Cross and RCEMA as 

being in the form of disaster relief, trainings, and participation in local events like the county 

fair. These jobs are more akin to particular tasks for which RCEMA and the Red Cross 

contracted with the Sisters rather than the consistent duties of a long-term employee. Though the 

defendants contest it, the Sisters do note that they were also involved on a more consistent basis 

by volunteering to assist with office and administrative work. However, the record reflects that 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 17

these duties were infrequently done and are not enough to shift this factor toward a finding that 

the Sisters were employees. 

6 

 On the other hand, one factor discussed by the parties does clearly weigh in favor of 

finding that the Sisters are employees of the Red Cross and RCEMA. According to the 

description of their duties, the Sisters were primarily volunteering with the organizations in the 

area of disaster relief, which was the regular business of the Red Cross and RCEMA. Though 

RCEMA notes that there is no evidence that the Sisters ever engaged in disaster relief operations 

on its behalf, the activities that the Sisters did engage in on RCEMA’s behalf, including 

volunteering at the local fair, did at least relate to the organization’s disaster relief operations. 

Because disaster relief is part of the regular business of the Red Cross and RCEMA, this factor 

weighs in favor of a finding that the Sisters are employees. 

7 

 The remainder of the Darden factors—the skill required, location of the work, source of 

instrumentalities and tools, the Sisters’ role in hiring and paying assistants, and whether or not 

the Red Cross and RCEMA are in business—receive little discussion from the parties and are not 

particularly instructive on these facts. It is sufficient for the purposes of this case to note that the 

Sisters have not shown that any combination of these factors overcomes the substantial weight of 

the previously discussed Darden factors that militate decisively against a finding that they are 

employees of the Red Cross or RCEMA. Since Sister Marie and Sister Cabrini cannot show 

themselves to be employees under the common law agency test, the district court properly 

granted summary judgment as to their claims under Title VII. 

B 

 The conclusion under Title VII is also fatal to the Sisters’ state law claims under the Ohio 

Civil Rights Act. As the district court correctly noted, Ohio state courts “have determined that 

federal case law interpreting Title VII of the Civil Rights Act of 1964, § 2000e et seq., Title 42, 

U.S. Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112.” 

Hampel v. Food Ingredients Specialties, Inc., 729 N.E.2d 726, 731 (Ohio 2000) (quoting 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 18

Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civ. Rights Comm., 421 N.E.2d 

128, 131 (Ohio 1981)). The Sisters make no compelling argument that a determination that they 

are not employees under Title VII does not require the same result under OCRA. As a result, 

summary judgment was likewise appropriate for the Sisters’ state law claims. 

C 

 The Sisters also argue that the district court committed error by granting RCEMA’s 

motion for summary judgment as to their claims asserted against RCEMA and David Bethel 

under 42 U.S.C. § 1983. Specifically, the Sisters allege violations of their First Amendment 

rights to free speech and free exercise of religion, as well as their Fourteenth Amendment rights 

of equal protection.4

 Concerning their First Amendment claims,5 the Sisters believe that Bethel terminated 

their volunteer relationship in retaliation for expressing their traditional Catholic beliefs through 

volunteering out of devotion to God and by wearing traditional habits, rosaries, and crosses. 

Because they see this as expressive conduct and part of their sincerely held religious beliefs, the 

Sisters argue that termination on these grounds is impermissible. 

 To establish a claim for First Amendment retaliation, the Sisters must allege that: 

(1) they engaged in constitutionally protected conduct; (2) RCEMA and Bethel took an adverse 

action against them that would deter a person of ordinary firmness from continuing to engage in 

that conduct; and (3) the adverse action was motivated at least in part by their protected conduct.

Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012) (citing Mezibov v. Allen, 

411 F.3d 712, 717 (6th Cir. 2005)). The district court decision and the subsequent discussion of 

the parties in the briefing focuses largely on the third factor of this analysis. To show a causal 

connection under this factor, the Sisters must first establish that the protected conduct was a 

 4

The district court also dismissed the Sisters’ constitutional claims based on their rights of free association 

and due process. However, the Sisters do not argue this determination on appeal and have apparently abandoned 

those claims. 

5

Though the Sisters brought claims for violations of both their rights of free speech and free exercise of 

religion, this court has previously found that “[b]ecause the analytic tools for adjudicating First Amendment 

retaliation claims under the Free Speech Clause have been so extensively developed, courts in this and other circuits 

have tended to import fully that reasoning when litigants have characterized their claims as arising under another 

First Amendment clause.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006) (citing 

Thaddeus-X, 175 F.3d at 390). Further, the Sisters have identified the same protected conduct and adverse actions 

as supporting their claims under both First Amendment clauses. Accordingly, the claims are analyzed together. 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 19

motivating factor behind their termination. Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 

1999) (en banc) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 

(1977)). However, RCEMA would still prevail on summary judgment by showing that it would 

have taken the same action anyway. Id. The district court found that the Sisters produced no 

evidence that RCEMA terminated them because of their expressive conduct or their sincerely 

held religious beliefs, and, as a result, they failed to carry their initial burden under the third 

factor. 

 The Sisters disagree with this conclusion. They claim that, through their discussions with 

him and through newspaper reports, Bethel knew they were traditional Catholic nuns. Further, 

the Sisters note that while Bethel was originally friendly to them, he later began to avoid them, 

exhibited increasingly more hostile behavior toward them, and excluded them from drills for no 

reason. There are, however, several problems with these arguments. As an initial matter, that 

Bethel knew of their religion and that he avoided and treated them in a hostile manner after a 

period of time does not necessarily show that the former is the reason for the latter. This is 

especially true in light of the fact that the Sisters admit that Bethel came to know of the Sisters’ 

religious beliefs at the beginning of his term of director of RCEMA, about six years before their 

eventual termination. If Bethel knew of the Sisters’ religious convictions and their expressions 

of these beliefs at the beginning of his tenure, when he was by their own admission still friendly 

to the Sisters, religious animus would not explain why he began avoiding them or treating them 

in an increasingly hostile manner. Further, the Sisters never elaborate on what exactly Bethel did 

that they considered hostile or what evidence led them to believe that such hostile behavior was 

somehow connected to their expressive conduct or their religious beliefs. As the Sisters have not 

satisfied their burden on an essential element of their First Amendment retaliation claims, the 

district court’s dismissal of those claims was warranted. 

 The Sisters also contend that RCEMA violated their Fourteenth Amendment right to 

equal protection under the law when RCEMA terminated their volunteer relationship. The Equal 

Protection Clause of the Fourteenth Amendment prohibits a state from denying to “any person 

within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. “The 

Clause embodies the principle that all persons similarly situated should be treated alike.” 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 20

Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006) (citing City of 

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Disparate treatment is a threshold 

element, which the Sisters must show in order to maintain their claim under the Equal Protection 

Clause. Id. Finding that the Sisters had provided no evidence that they were treated differently 

from any other RCEMA volunteer, the district court granted RCEMA’s motion for summary 

judgment on this point. 

 The Sisters argue on appeal that the record does, in fact, show that RCEMA treated them 

differently than the other RCEMA volunteers because of their religious beliefs. In support of 

this claim the Sisters primarily challenge Bethel’s credibility and his reason for terminating 

them—that they sent him a letter disapproving of the management of the organization. The 

trouble with these arguments, however, is that they overlook the fact that disparate treatment is a 

threshold element that the Sisters must cross in order to trigger an equal protection analysis of 

the classifications made by RCEMA and its justifications for doing so. Scarbrough, 470 F.3d at 

260. This record is devoid of information that Bethel treated the Sisters differently than the other 

volunteers. The Sisters were terminated from their volunteer positions, but it appears that this 

occurred during a routine update of the RCEMA volunteer database. Bethel sent letters to all 

sixteen volunteers who had previously worked with RCEMA to determine whether they would 

continue to serve as volunteers for the organization. Bethel ultimately discontinued RCEMA’s 

volunteer relationship with the vast majority of these volunteers. It may be that the Sisters are 

the only two who were terminated despite expressing their interest in continuing to volunteer, but 

they were also the only two who wrote back to express their dissatisfaction with the management 

of the agency and the use of their abilities in its operation. This alone is not sufficient to show 

that Bethel singled out and treated the Sisters differently than other similarly situated volunteers 

because of their religious beliefs. Without evidence of disparate treatment, the Sisters cannot 

maintain a § 1983 claim for equal protection violations, and the district court’s decision was 

correct. 

D 

 The district court also properly dismissed the Sisters’ constitutional claims against the 

Red Cross and Mary McCord on the grounds that they were not state actors as required by 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 21

42 U.S.C. § 1983. This court reviews de novo a district court’s dismissal under Federal Rule of 

Civil Procedure 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), the Sisters’ 

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that 

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. 

v. Twombly, 550 U.S. 544, 570 (2007)). In the context of § 1983, the Sisters argue that the Red 

Cross or Mary McCord acted under color of state law to deprive them of a right secured by the 

Constitution or by laws of the United States. 42 U.S.C. § 1983 (2012); see also Tahfs v. Proctor, 

316 F.3d 584, 590 (6th Cir. 2003). The Red Cross and Mary McCord are considered state actors 

for the purposes of § 1983 only if their conduct that allegedly gave rise to the deprivation of the 

Sisters’ constitutional rights may be “fairly attributable to the State.” Lugar v. Edmondson Oil 

Co., Inc., 457 U.S. 922, 937 (1982). This circuit has recognized as many as four tests to aid 

courts in determining whether challenged conduct is fairly attributable to the State: (1) the 

public function test; (2) the state compulsion test; (3) the symbiotic relationship or nexus test; 

and (4) the entwinement test. Vistein v. Am. Registry of Radiologic Technologists, 342 F. App’x 

113, 127 (6th Cir. 2009) (citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992); 

Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 298 (2001)).6 

 To show that the Red Cross and Mary McCord were state actors under the public 

functions test, the Sisters must show that “they exercise powers which are traditionally 

exclusively reserved to the state, such as holding elections or eminent domain.” Wilcher v. City 

of Akron, 498 F.3d 516, 519 (6th Cir. 2007) (quoting Wolotsky, 960 F.2d at 1335). The Sisters 

allege that the Red Cross is an organization that responds to disasters and that disaster response 

is in the historical and traditional province of the state. They attempt to evince this by citing 

various portions of a Red Cross publication, which notes that the Red Cross was chartered by the 

United States Congress and given a mandate from the government to, among other things, assist 

state governments in responding to disasters in ways that exceed other charitable organizations. 

 6

Some cases in this circuit have only enumerated three tests for evaluating whether an action is fairly 

attributable to the state. See, e.g., Wilcher v. City of Akron, 498 F.3d 516, 519 (6th Cir. 2007). However, as the 

most recent decision from this circuit includes a separate discussion of the entwinement test, and the Sisters argue 

that the Red Cross is a state actor under that separate test, we discuss the entwinement test separately as well. See 

Vistein, 342 F. App’x at 128. 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 22

 As an initial matter, simply alleging in a complaint that the Red Cross is a state actor or 

that disaster relief is traditionally exclusively in the province of the State is no longer, if it ever 

was, sufficient to survive a motion to dismiss. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 

U.S. at 556) (noting that courts “are not bound to accept as true a legal conclusion couched as a 

factual allegation”); see also Tahfs, 316 F.3d at 593. Instead, the burden is on the Sisters to 

advance historical and factual allegations in their complaint giving rise a reasonable inference 

that disaster relief is traditionally exclusively in the province of the State. Wittstock v. Mark A. 

Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003) (“When considering whether private action 

should be attributed to the state under the public function test, the court conducts a historical 

analysis to determine whether the party has engaged in an action traditionally reserved to the 

state, and the plaintiff bears the burden of making that showing.”). Under this “relatively stiff 

test,” few areas are deemed exclusive state action (e.g. elections, eminent domain), and many 

other actions—even those that involve extensive government regulation—do not suffice to 

establish state action (e.g. insurance, education, workers’ compensation, or electrical utilities). 

Wilcher, 498 F.3d at 519; see Flagg Bros. v. Brooks, 436 U.S. 149, 157-62 (1978); Jackson v. 

Metropolitan Edison Co., 419 U.S. 345, 353 (1974); Lansing v. City of Memphis, 202 F.3d 821, 

832 (6th Cir. 2000). The Sisters’ Amended Complaint, as elaborated upon by their brief, has 

alleged facts that show that the Red Cross was chartered by the federal government and that it 

works with state governments that also engage in disaster relief activities. However, this is very 

different from alleging facts tending to show that disaster relief operations are traditionally 

within the exclusive province of the State. The Sisters fail to provide any historical argument or 

analysis that disaster relief is traditionally exclusively a state function. “Considering that plaintiff 

bears the burden on this issue, this failure alone renders this test inapplicable.” Tahfs, 316 F.3d at 

593.7

 

 The Sisters do not argue that the State compelled the Red Cross or McCord to take action 

against them, but they do believe that they are state actors under the symbiotic relationship test. 

Under this test, also known as the nexus test, a private party’s conduct constitutes state action 

where “there is a sufficiently close nexus between the state and the challenged action of the 

 7

It is notable that the court in Tahfs was also considering the grant of a motion to dismiss under Federal 

Rule of Civil Procedure 12(b) when discussing what is required of plaintiffs under the public functions test. 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 23

regulated entity so that the action of the latter may be fairly treated as that of the state itself.” 

Wilcher, 498 F.3d at 520 (citation omitted). In support of this test, the Sisters argue that they 

have sufficiently shown a symbiotic relationship by pleading that the Red Cross is financially 

dependent on government assistance and that they regularly partner with state and local 

governments in disaster relief. However, the fact that the Red Cross receives public funding is 

not sufficient to establish a close nexus between state and private actors. Lansing, 202 F.3d at 

830 (citing Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982)). Indeed, the Supreme Court held 

that a private school’s personnel decisions were not fairly attributable to the State even though 

“virtually all of the school’s income was derived from government funding.” Rendell-Baker, 

457 U.S. at 840. Further, “mere cooperation simply does not rise to the level of merger required 

for a finding of state action.” Lansing, 202 F.3d at 831. 

 Additionally, it is important to note that this test evaluates whether “there is a sufficiently 

close nexus between the state and the challenged action.” Wilcher, 498 F.3d at 520 (emphasis 

added) (citation omitted); see also Rendell-Baker, 457 U.S. at 841; Blum v. Yaretsky, 457 U.S. 

991, 1005-12 (1982). Here, the challenged actions are the failure of the Red Cross to promote 

the Sisters and the ultimate decision to terminate them. There are no allegations in the Amended 

Complaint to show that the State had any connection to these types of personnel decisions within 

the Red Cross. Thus, the Sisters have not shown any nexus between the challenged action and 

the State under this test. 

 Finally, the Sisters argue that the conduct of the Red Cross and McCord is state action 

under the entwinement test. To satisfy the requirements of this test the Sisters must show that 

the Red Cross is “entwined with governmental policies” or that the government is “entwined in 

[the private entity’s] management or control.” Vistein, 342 F. App’x at 128 (quoting Brentwood, 

531 U.S. at 296). The Sisters claim that during disasters the Red Cross works so closely with 

state agencies that it is difficult to delineate between them. Undoubtedly, in disaster situations 

all responders must work together in order to effectively aid victims and avoid danger. 

However, once again, “mere cooperation simply does not rise to the level of merger required for 

a finding of state action.” Lansing, 202 F.3d at 831. Further, “[t]he crucial inquiry under the 

entwinement test is whether the ‘nominally private character’ of the private entity ‘is overborne 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 24

by the pervasive entwinement of public institutions and public officials in its composition and 

workings [such that] there is no substantial reason to claim unfairness in applying constitutional 

standards to it.’” Vistein, 342 F. App’x at 128 (quoting Brentwood, 531 U.S. at 294). The 

Sisters’ allegations do not meet this threshold, and so the actions of the Red Cross are not fairly 

attributable to the State under the entwinement test either. Therefore, because the Sisters have 

failed to allege sufficient facts to show that the Red Cross and Mary McCord acted under the 

color of state law, the district court properly dismissed the § 1983 claims against them. 

E 

 The district court’s order dismissing the § 1983 claims against the Red Cross also 

contains a footnote essentially dismissing—to the extent they were ever asserted—the Sisters’ 

Bivens claims against the Appellants because the Amended Complaint had not sufficiently 

placed them on notice of such claims. This decision was prompted by a footnote in the Sisters’ 

response brief that characterized their complaint as bringing direct constitutional violation 

claims. On appeal, the Sisters further clarified that they intended to and did assert Bivens claims 

against David Bethel and Mary McCord, and that the district court erred by dismissing those 

claims. 

 For a claim to be viable, the complaint must, at a minimum, “give the defendant fair 

notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In Bivens v. Six Unknown Named 

Agents of Federal Bureau of Narcotics, the Supreme Court created a private right of action for 

damages against federal officers who are alleged to have violated a citizen’s constitutional rights. 

403 U.S. 388, 397 (1971); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-74 (2001). 

For the Sisters to maintain a claim under the Bivens doctrine, at a minimum they must plead and 

prove two essential elements: (1) that they have been deprived of rights secured by the 

Constitution or laws of the United States and (2) that the defendants who allegedly deprived 

them of those rights acted under color of federal law. Bivens, 403 U.S. at 397; see also Vector 

Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698 (6th Cir. 1996). 

 The Sisters argue that their Amended Complaint sufficiently notified Mary McCord and 

David Bethel that they were asserting a Bivens claim against them. Specifically, the Sisters 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 25

claim that their Amended Complaint alleged that McCord and Bethel were federal actors who 

were personally involved in conduct that violated their constitutional rights. At the district court 

level they also argued that Bethel and McCord should have been notified of the Bivens claim 

because the Amended Complaint alleged both constitutional violations and § 1983 claims. 

 If the Sisters did intend to assert a claim under the doctrine set forth in Bivens, a review 

of the Amended Complaint shows that they could hardly have made that intention less clear. 

Starting with the jurisdiction section of the complaint, the Sisters stated, “[t]his Court has 

jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 1331, 1343 and 2201 to secure rights 

under 42 U.S.C § 1983 and 42 U.S.C § 2000e-5(f)(3) as plaintiffs seek remedies of violations of 

the constitutional guarantees granted by the First, Fifth, and Fourteenth Amendments to the 

United States Constitution.” [R. 37 at 2]. The Sisters’ complaint omits any reference to Bivens

and clearly indicates that they are asserting their constitutional claims under Title VII and 

§ 1983. Indeed, the Sisters proceed to specifically label counts of the Amended Complaint as 

raising claims under Title VII and § 1983 with no mention of Bivens. Each count under § 1983 

begins with this or a similar heading: “Violations of the First and Fourteenth Amendments to the 

United States Constitution and 42 U.S.C. § 1983 – Deprivation of Right to Free Speech, Free 

Association, and Exercise of Religion under Color of State Law.” [R. 37 at 16 (emphasis 

added)]. Substantively, under each of those headings the Sisters have recited the elements for a 

§ 1983 action and even included the following paragraph: 

Pursuant to 42 U.S.C. § 1983 it is unlawful for any person who under color of any 

statute, ordinance, regulation, custom, or usage of any State subjects, or causes to 

be subjected, any citizen of the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party injured in an 

action at law, suit in equity, or other proper proceeding. 

[R. 37 at 17]. It is difficult to see how counts employing this language could have placed Mary 

McCord or David Bethel on notice that they needed to defend against a Bivens claim. 

 It is true that the Amended Complaint does mention the federal government. The Sisters 

note that the Red Cross was created by federal charter and that its disaster relief work involved 

“[p]erforming the tasks of federal, state and local government . . . .” [R. 37 at 15]. However, 

these few fleeting references to the federal government in a lengthy complaint are insufficient to 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 26

place the McCord or Bethel on notice of a Bivens claim, let alone constitute sufficient factual 

allegations to make it plausible that McCord or Bethel were operating under color of federal law. 

This is especially true in light of the fact that much of the complaint is dedicated to expressly 

alleging that McCord and Bethel operated under color of state law and thereby transgressed 

§ 1983. 

 It is also worth noting that even if the words of the complaint could be twisted to construe 

a claim under Bivens, such a claim would be fraught with other troubles. As an initial matter, the 

counts asserting § 1983 claims, which are those that most closely resemble a Bivens claim, do 

not differentiate between the Red Cross and Mary McCord or RCEMA and David Bethel. 

However, it is well established that Bivens actions may not be asserted against either federal 

agencies or private corporations. Malesko, 534 U.S. at 70-74. Further, the few references to 

federal agencies appear only in paragraphs discussing the Red Cross, and yet Mary McCord, the 

only named officer of the Red Cross, was sued in her “professional capacity.” This court has 

previously found that plaintiffs may not recover on Bivens claims that are asserted against federal 

officers in their official capacity. Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991). In light of 

these deficiencies, the district court properly dismissed any Bivens claims that the Sisters purport 

to have raised. 

F 

 Finally, we address a procedural matter. Over the Sisters’ objections, the district court 

adopted the magistrate judge’s recommendation that the deadlines in the court’s scheduling order 

should not be further extended to accommodate additional discovery. The Sisters challenge this 

decision on appeal. Federal Rule of Civil Procedure 16 states that “[a] schedule may be 

modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). District 

courts have broad discretion under the rules of civil procedure to manage the discovery process 

and control their dockets. Wolotsky, 960 F.2d at 1338. Therefore, this court reviews a district 

court’s denial of additional time for discovery for abuse of discretion. Audi AG v. D’Amato, 469 

F.3d 534, 541 (6th Cir. 2006) (citing Plott v. Gen. Motors Corp., 71 F.3d 1190, 1197 (6th Cir. 

1995)). In conducting that review, this court considers the following factors: 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 27

(1) when the moving party learned of the issue that is the subject of discovery; (2) 

how the discovery would affect the ruling below; (3) the length of the discovery 

period; (4) whether the moving party was dilatory; and (5) whether the adverse 

party was responsive to . . . prior discovery requests. 

Bentkowski v. Scene Magazine, 637 F.3d 689, 696 (6th Cir. 2011) (quoting Dowling v. Cleveland 

Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010)). Still, “[t]he overarching inquiry in these 

overlapping factors is whether the moving party was diligent in pursuing discovery.” Id.

 On December 9, 2011, the district court set August 30, 2012 as the deadline for 

conducting discovery. The Sisters did not send requests for discovery until August 9, 2012. 

Though noting that the Sisters had not shown good cause, the court continued the discovery 

deadline until October 20, 2012. However, the court warned that no further extensions would be 

granted. After struggling to secure certain documents from the Red Cross and to schedule 

depositions with their agents, the Sisters filed a motion to compel. Subsequently, the parties 

tendered an agreed motion for a further extension in which the Sisters agreed to withdraw the 

motion to compel in the event that the extension was granted. The court extended the discovery 

deadline to December 14 and denied the motion to compel based on the Sisters’ representations. 

The court again warned that it would grant no further extensions of the discovery deadline. The 

Red Cross answered the discovery requests but subsequent deposition testimony revealed that 

some of the requested documents had not been produced. Additionally, though some of the 

requested individuals were made available for depositions, the parties were unable to depose 

several others. To further accommodate these discovery matters, the parties moved for a further 

extension on December 14, which the court denied. The Sisters again moved to extend the 

discovery deadline on February 19, 2013. The magistrate judge recommended that the motion be 

denied, and the district court adopted that recommendation. 

 The Sisters now argue that the reason they waited so long to make their initial discovery 

requests was that there was a motion to dismiss pending and they wanted to see the results of that 

motion before they proceeded with discovery. After the initial extensions, the Sisters claim that 

they were unable to accomplish their discovery goals because of a lack of cooperation from the 

Red Cross. However, even in light of these two facts, the Sisters were clearly not diligent in 

pursuing discovery. The Sisters waited nearly nine months to submit their initial discovery 
No. 13-4052 Sister Michael Marie, et al. v. Am. Red Cross, et al. Page 28

requests, which were served only a few weeks before the discovery deadline. This dilatory 

behavior was not justified by the pending motion to dismiss because the court’s standing order 

expressly warned the Sisters that they “should not presume that a pending motion relieves them 

of their obligation to conduct discovery within the deadlines set forth by the case schedule.” [R. 

125 at 4]. Altogether, the discovery period in this case was extended twice and lasted over a 

year. The Sisters were well aware of their need to depose the relevant individuals during that 

entire period because most of them were named in the Complaint. Further, the Sisters have 

provided no information suggesting that acquiring the desired discovery would alter the outcome 

of the motion for summary judgment in any way. Finally, while the Red Cross might have been 

less than cooperative, the Sisters could have, at any time in the year-long discovery period, 

moved to compel them to act. The record indicates that their only motion to compel was 

essentially withdrawn when an extension was granted. Because the Sisters did not diligently 

pursue discovery, the district court did not abuse its discretion in denying them additional time. 

III 

 Accordingly, for the aforementioned reasons, we AFFIRM the well-reasoned decisions of 

the district court.