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

_________________

S ISTER M ICHAEL M ARIE ; S ISTER M ARY C ABRINI , Plaintiffs-Appellants ,

v

.

A MERICAN R ED C ROSS ; R OSS C OUNTY E MERGENCY M ANAGEMENT A GENCY ; M ARY M C C ORD ; D AVID B ETHEL , Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 13-4052

Appeal from the United St ates 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, Circu it 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, Co lumbus, Ohio, for Appellants. Jeffrey W. Larroca, Michael A. Graziano, ECKERT, SEAMANS, CH ERIN & MELLOTT, LLC, Washington, D.C., for American Red Cross Appellees. Jeffrey A. Stankunas, Julia R. Baxter, ISAAC WILES BURKHOLDER & TEETOR, LL C, 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 employ ment 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, co mpleted 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 fair ly approximate employment and is not covered by Title VII. Nor, as will be explained, were the Sisters’ c onstitutional rights violated. Accordingly, the district court’s dismissal of the Si sters’ claims shall be AFFIRMED.

I
Appellants Sister Michael Marie and Sister Mary Cabrini are traditional Catholic Nuns and part of the Order of the Miss ionaries of the Sacred Heart. As such, the Sisters wear habits and crosses and hold some beliefs that are distin ct 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 traditio nal Catholic faith, they have dedicated their lives to assisting the poor and serving the good of the commun ity. The Sisters have no insu rance, and neither has had any personal income for a decade prior to the filing of th is suit. They live toge ther 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 volunteer s for certain community organi zations including the Appellees, First Capital District Chapter of Ameri can Red Cross and the Ross County Emergency Management Agency (RCEMA). The Red Cross is a non-profit corpor ation chartered by theNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 3

United States Congress to perform certain charitable functions includi ng 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 Firs t 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 task s, 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 wee k, 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 vol unteer, which is define d as “an individual who, beyond the responsibilities of paid empl oyment, 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, dent al, or vision insurance. The Sisters were not eligible to participate in any retirement pl an through the Red Cross and did not receive or complete W-2, W-4, or I-9 forms or pay income taxes as a re sult of their relationship with the Red Cross. Nevertheless, the Sisters claim that they still re ceived benefits from their participation with the Red Cross. They point to their eligibility for workers’ compensation and life insurance, access to training and educational program s, opportunities for networking and improved standing in the community, in-kind travel donations and reimburseme nts, and access to disast er victims so that they can serve them as part of their religious beliefs.
Supervisors at their chapter of the Red Cross formally evaluate d 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 or ganization. These promotions would not have entitled the Sisters to any salary, but would have altered thei r roles and responsibilities. However, the Sisters claim that Appellee MaryMcCord, the Executive Director of the FirstNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 4

Capital District Chapter of the American Red Cr oss, refused to allow these promotions. The Sisters indicate that based on personal interactio ns and representations fro m 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 investigati on 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 Sister s 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, th e Red Cross denied the appeal.
During the same period of time, the Sister s were also volunteers for the Ross County Emergency Management Agency. RCEMA also assists victims during emergencies and disasters. Additionally , the organization supports fire an d police departments and coordinates between local, state, and federal emergency management agencies, including the Federal Emergency Management Agency (FEMA). Appelle e David Bethel is the Director of RCEMA, which is also overseen by a board of director s that includes, among others, the Executive Director of the First Capital District Chapte r of the American Red Cross, Mary McCord.
Sister Cabrini began volunteering with RCE MA in 1994. She indicates that during her time there, she engaged in administrative task s 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, peri odic 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 C ounty Fair and the Sisters indicate that they volunteered at that booth on beha lf 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 associ ation with RCEMA, they receivedNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 5

the opportunity for grants, access to several traini ngs, 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 le tter 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 Sept ember 8, indicating that the organization was updating its records and wanted to gauge their interest in re maining volunteers. He also requested permission to conduct police backgr ound 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 volunt eer, or did not consent to a police background check, only five volunteers remained, incl uding Sister Cabrini and Sister Marie. The Sisters responded by return letter on Septembe r 23, 2009. In that letter, they expressed disappointment in the management of the organizat ion and that their skills had not been better used under Bethel’s direction. However, they also e xpressed 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 dissati sfied with the operation of our office. I feel it is in the best intere st of the County Emergency Management Agency to terminate your volunteer status with our office.” [Corrected A ppellant Br. at 137]. The Sisters then composed a letter to the Ross County Bo ard of Commissioners on ce 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 di scrimination charge against RCEMA and the Red Cross with the Ohio Civil Rights Commi ssion 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 decisi on through the EEOC. The record does not provide any indication that the Sisters availed themselves of this re view. On December 20, 2010, the Sisters did requestNo. 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 EEO C 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 hara ssment. The Sisters also brought claims under 42 U.S.C. § 1983 for violations of their constitutio nal rights of, among other things, free speech, free exercise of religion, and equal protection under the law. Finding th at 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. Inthe same order the c ourt 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 di strict court granted the Appellees’ subsequent motion for summary judgment, finding that there was no dispute of ma terial 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 coul d not maintain a claim against them under Title VII. The Sisters now appeal th ese decisions to this court.

II

A

Sister Marie and Sister Cabr ini 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 c ourt 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 esse ntial elements of the no nmoving 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 wo rking day in each of twenty or more calendar weeks in the current or prec eding calendar year, and any agent of such a person.” 42 U.S.C. § 2000e(b) (2012).
The parties agree that the cr itical issue is whether the Si sters 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 circ ularity of this defi nition renders it quite unhelpful in explaining whom Cong ress 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 circ ular and explains nothing”). Therefore, we assume “that Congress intended to describe th e 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 hiri ng 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] th e duration of the relationship between theNo. 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 hi red 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 busin ess; [12] the provision of employee benefits; [13] and the ta x 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 conclude d that the so-called Darden factors from the common law agency test are the appropriate means of measuring whether a vol unteer merits the protect ions of employment discrimination laws. Id . at 354. Admittedly, this test is not neatly applied to the volunteer context. The original purpose of the factor s 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 th e traditional sense, they are quite differently situated than either employees or independe nt contractors, betweenwhich 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 relations hip,’” and “[w]here no financial benefit is obtained by the purported employee from the empl oyer, no ‘plausible’ employment relationship of any sort can be said to exis t because . . . ‘compensation . . . is an essential condition to the existence of an employer-employee relationship’”).

Because of these differences, all of th e other circuits to have considered the circumstances under which a volunteer is an employee have exalted remuneration as an independent antecedent inquiry, su ch that the traditional common law agency analysis is only employed when the volunteer relationship fair ly approximates an employment relationship. 2 In

2 Juino v. Livingston Pa rish 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 ofNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 9

Bryson , we expressly rejected this th reshold remuneration test in fa vor of full application of the common law agency test, requiring th at “‘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, re muneration 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 cons ideration, it did not provide furthe r guidance to co urts as to how to apply the factors in lig ht of their incongruity wi th the volunteer context.
In this case, the district court, as instructed by Bryson , weighed all of the common law agency factors, including remuneration, and determ ined that the Sisters were not employees of the Red Cross or RCEMA. Though the Red Cross is so mewhat critical of this test in the briefs, the main dispute between the partie s on appeal is not whether the di strict court applied the proper test, but whether it weighed all of the factors of that test correctly. The Si sters argue that the district court erred by treating ev ery factor of the analysis as equal rather than varying the “degree of importance” of each f actor 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 relate d to remuneration, such as compensation and tax treatment, are not important in the common la w analysis because one would not expect a volunteer to satisfy these factors whet her or not she is an employee.
However, in making these arguments, the Sist ers ask this court to engage in the same type of behavior that Bryson repudiated. As discussed, other circ uits 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 cate gorically more important, the Sisters seek modification of the opposite sort, such that rem uneration would be categor ically weighted less when a volunteer is being considered. Bryson rejected these types of modifications and established a principle that woul d 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 “emp loyees” 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 voluntee r 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 im portance of each factor [will vary] depending on the occupation and the factual cont ext 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 (contrasti ng the application of the Darden factors as applied under the Copyright Act and ERISA a nd 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 fact ors 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 re lated to remuneration and financial matters—the method of payment, the provision of employee benefits, and ta x treatment—are particularly relevant here. Thus, in considering the applicati on 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 undisput ed that the Red Cross and RCEMA did not, at least in the traditional sense, pa y the Sisters at all. In this fa ct the first sign of the incongruity between the common law agency test and the vol unteer 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 contractor s 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 contract ors 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 remunera tion in this manner weighs agai nst a finding that they are employees of the Red Cross or RCEMA.

2
The Red Cross and RCEMA not only did not provi de 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 pr esent in the employment relationship, their absence also weighs against a finding that the Si sters 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’ compensa tion insurance coverage, training, gift cards, personal use of the fire department facilitie s 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 obtaine d significant remuneration when he received, among other things, a retirement pension, life insuran ce, and some medical benefits); Haavistola , 6 F.3d at 221-22 (finding that a jury could conc lude that firemen obtained signi ficant remuneration when they received, among other things, group life insuran ce, tuition reimbursement for courses in emergency medical and fire service techni ques, tax-exemptions, reduced rates on commemorative license plates, and an opportunity to obtain paramedic cer tification). The jobrelated benefits that these firemen received bear a resemblance to traditional forms of compensation for employees because they include pr esently vested benefits with real financial value given as consideration for an ongoi ng 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 rese mble 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 furthe r, recognizing that even non-fi nancial benefits can cause the remuneration factors to weigh infavor of the employment stat us 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 opportunitie s 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. Oc t. 30, 2006). On the other hand, arguments about enhanced career opportunities, ac cess to training, or possible future employment have been rejected by courts when these opportunities are accessible to the public generally or when theyare too speculative. See Graves , 907 F.2d at 73 (noting that the career advancement opportunities could not be consider ed remuneration in part because they were generally available ev en to non-members); Moran v. Harris Cnty. , No. H-07-582, 2007 WL 2534824, at *1 (S.D. Tex. Aug. 31, 2007) (finding that fre e certification cl asses, networking opportunities, and job experience benefits were too speculativ e 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 situ ations 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 dependen t on the employer in a manner not found in more speculative contexts.
Even construing the evidence in the light mo st favorable to the Sisters, the job-based benefits they claim to have derived from vol unteering with the Red Cr oss and RCEMA are very much unlike those traditionally received by employ ees or found to constitute remuneration in the aforementioned cases. Many of the benefits, such as workers’ compensation insurance eligibility, liability insurance for injuries su stained 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 valu able financial consideration exchanged in return
for services. 3 Additionally, the educati onal opportunities, po ssibility 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 Cr oss with the Ross County Fire and Rescue Association. [R. 129 at 22]. Even from this reco rd it appears that one may become associated with RCF RA in other ways asideNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 13

standing in the community, networking opportun ities, opportunities for grants, and access to opportunities to serve are speculative and insuffi cient to constitute remuneration here. The record also reflects that the educ ational opportunities and the ability to assist victims of disasters were generally available to the Sisters, who w ould 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 di d 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 matte rs, it is noteworthy th at 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 ta xes 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 agains t a finding that they are employees.

4
The right to control of the means and mann er of performance, the right to assign additional projects, and th e discretion over when and how long to work are Darden factors that, under these circumstances, are related to one anot her and bear very strongly on the issue of control. “The crux of Darden ’s common law agency test is ‘the hiring party’s rightto 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 an d 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 performa nce and the employment opportunities of the aggrieved indi vidual’ 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 Sist ers indicated that they were also associated with the RCFRA through RCEMA. [Corrected Appe llant 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). I ndeed, the idea of control is “embodied in many of the specific factors,” the an alysis of which “refle cts 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 provide d them with a set sche dule and had the power to assign their volunteer tasks. However, this assertion is largely unsupp orted 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 onl y 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 pl aintiff had shown that her employer had input into these areas, she retained significant discre tion 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’ activi ties also reveals that the Sister s 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, af ter 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 individualNo. 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 he r. In this way, the Sisters bear little similarity to employees.
The Sisters argue that if they had not wo rked 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. Intheir 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 Cr oss office for over a year before she was terminated. Nevertheless, she continued to cons ider 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 Sister s’ 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 im portant 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 compensati on was at the heart of the economic realities test previously employed by this circui t 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 instruc tive 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 th at “several of the factors listed in Darden and ReidNo. 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 tr aditional forms of remuneration like salary and benefits, employers are generally without leverage to control thatvolunteer’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 ha ve threatened to se ver their volunteer relationship with the Sist ers upon their refusal to a dhere to a set schedule or to accept the tasks given them, this does no t necessarily show that the agencies exercised any real control over the Sisters. Unlike most employ ees, the Sisters are not economica lly 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 si gnificantly undercuts the Si sters’ 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 wh en and how long the Sisters work ed, or to control the means and manner in which they worked. As a result, thes e three important factors weigh heavily against a finding that the Sisters were employees.

5

The Sisters have been associated with th e 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 l ong-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 participati on in local events like the county fair. These jobs are more akin to partic ular 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 thatNo. 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 th e parties does clearly weigh in favor of finding that the Sisters are employees of th e 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 Sist ers ever engaged in disa ster relief operations on its behalf, the activities that the Sister s did engage in on RCEMA’s behalf, including volunteering at the local fair, did at least relate to the organizatio n’s disaster reli ef operations. Because disaster relief is part of the regular business of the Red Cross and RCEMA, this factor weighs in favor of a finding th at the Sisters are employees.

7

The remainder of the Darden factors—the skill re quired, location of th e work, source of instrumentalities and tools, the Sisters’ role inhiring 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 fa cts. It is sufficient for the purpos es of this case to note that the Sisters have not shown that any combination of these factors overc omes 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 la w 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 Sister s’ state law clai ms under the Ohio Civil Rights Act. As the district court correctly noted, Ohio state courts “have determined that federal case law interpreting Title VI I of the Civil Rights Act of 1964, § 2000e et seq. , Title 42, U.S. Code, is generally applicab le to cases involving alleged vi olations of R.C. Chapter 4112.” Hampel v. Food Ingredients Specialties, Inc. , 729 N.E.2d 726, 731 (Ohio 2000) (quotingNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 18

Plumbers & Steamfitters Joint Apprentices hip Comm. v. Ohio Civ. Rights Comm. , 421 N.E.2d 128, 131 (Ohio 1981)). The Sisters ma ke no compelling argument that a determination that they are not employees under Title VII does not requir e 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 distri ct court committed error by granting RCEMA’s motion for summary judgment as to their clai ms asserted against RCEMA and David Bethel under 42 U.S.C. § 1983. Specifically, the Sisters al lege violations of their First Amendment rights to free speech and free exercise of religio n, 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 expr essing their traditional Catholic beliefs through volunteering out of devotion to God and by weari ng traditional habits, ro saries, 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 re taliation, 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 c ontinuing 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 c ourt decision and the subsequent discussion of the parties in the briefing focuses largely on the th ird factor of this anal ysis. To show a causal connection under this factor, the Sisters must fi rst 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 bro ught 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 adju dicating 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 clau ses. 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 fa iled to carry their init ial 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 theywere 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, severa l problems with these arguments. As an initial matter, that Bethel knew of their religion and that he avoi ded and treated them in a hostile manner after a period of time does not necessarily show that the fo rmer is the reason for the latter. This is especially true in light of the fact that the Sist ers 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 Sist ers’ 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 explai n 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 le d them to believe that such hostile behavior was somehow connected to their expre ssive conduct or their religious be liefs. 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 viol ated their Fourteenth Amendment right to equal protection under the law when RCEMA terminat ed their volunteer rela tionship. 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. C ONST . 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 (6thCir. 2006) (citing City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985)). Dispar ate 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 ha d provided no evidence that theywere 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 Beth el’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 theyoverlook the fact that disparate treatment is a threshold element that the Sisters must cross in order to trigger an equa l protection analysis of the classifications made by RCEMA and its justificati ons for doing so. Scarbrough , 470 F.3d at 260. This record is devoid of information that Be thel treated the Sisters differently than the other volunteers. The Sisters were term inated from their volunteer posit ions, but it appears that this occurred during a routine update of the RCEMA vol unteer database. Bethel sent letters to all sixteen volunteers who had previo usly worked with RCEMA to determine whether they would continue to serve as volunteers for the organi zation. 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 conti nuing 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 th eir abilities in its operation. This alone is not sufficient to show that Bethel singled out and treate d the Sisters differently than other similarly situated volunteers because of their religious beliefs. Without evid ence 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 byNo. 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 dismi ssal 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 f actual 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 tes t; (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 Mc Cord 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 th at disaster response is in the historical and traditional province of th e state. They attempt to evince this by citing various portions of a Red Cross pub lication, 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 di sasters in ways that exceed other charitable organizations.

6 Some cases in this circuit have on ly enumerated three te sts 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 di scussion of the en twinement 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 co mplaint 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 bu rden is on the Sisters to advance historical and factual al legations in their complaint gi ving 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 stat e under the public function test, the court conducts a historical analysis to determine whether the party has enga ged in an action traditionally reserved to the state, and the plaintiff bears the burden of making that showing.”). Under this “r elatively stiff test,” few areas are deemed exclusive state action (e.g. elections, eminent domain), and many other actions—even those that involve exte nsive government regulation—do not suffice to establish state action (e.g. insura nce, education, workers’ compen sation, 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 Comp laint, 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 di saster relief activities. However, this is very different from alleging facts tendi ng to show that disaster reli ef 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 f unction. “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 compe lled 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 th ey regularly partner with state and local governments in disaster relief. However, the f act 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)). Ind eed, the Supreme Court held that a private school’s personnel de cisions were not fairly attribut able to the State even though “virtually all of the sch ool’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 ar e 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 connec tion to these types of pe rsonnel decisions within the Red Cross. Thus, the Sist ers have not shown any nexus be tween the challenged action and the State under this test.
Finally, the Sisters argue th at the conduct of the Red Cross and McCord is state action under the entwinement test. To sati sfy the requirements of this te st 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 difficu lt to delineate between them. U ndoubtedly, in disaster situations all responders must work togeth er in order to effectively ai d 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 privat e character’ of the private entity ‘is overborneNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 24

by the pervasive entwinement of public instituti ons and public officials in its composition and workings [such that] there is no substantial r eason 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, a nd so the actions of the Red Cross are not fairly attributable to the State under th e entwinement test either. Ther efore, 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 prope rly 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 di smissing—to the extent they were ever asserted—the Sisters’
Bivens claims against the Appella nts because the Amended Complaint had not sufficiently placed them on notice of such claims. This deci sion was prompted by a footnote in the Sisters’ response brief that characterized their compla int as bringing direct constitutional violation claims. On appeal, the Sisters further clar ified that they intende d to and did assert Bivens claims against David Bethel and Mary McCord, and th at 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 federallaw. 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 thei r Amended Complaint sufficiently notified Mary McCord and David Bethel that they were asserting a Bivens claim against them. Specifically, the SistersNo. 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 inte nd 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 ma tter 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 pl aintiffs seek remedies of violations of the constitutional guarant ees granted by the First, Fifth, and Fourteenth Amendments to the United States Constitution.” [R. 37 at 2]. Th e 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 h eading: “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 headi ngs 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 unlawf ul for any person who under color of any statute, ordinance, regulation, custom, or us age of any State subjects, or causes to be subjected, any citizen of the Unite d 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 equit y, or other proper proceeding. [R. 37 at 17]. It is difficult to see how count s employing this language could have placed Mary McCord or David Bethel on notice thatthey needed to defend against a Bivens claim.
It is true that the Amended Complaint doe s 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 loca l government . . . .” [R. 37 at 15]. However, these few fleeting references to the federal government in a lengt hy complaint are insufficient toNo. 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 word s of the complaint could be twisted to construe a claim under Bivens , such a claim would be fraught with othe r 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 assert ed 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 disc ussing 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 plai ntiffs 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 districtcourt properly dismissed any Bivens claims that the Sisters purport to have raised.

F
Finally, we address a procedur al 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 a dditional discovery. The Sisters challenge this decision on appeal. Federal Rule of Civil Pro cedure 16 states that “[a] schedule may be modified only for good cause and w ith the judge’s consen t.” Fed. R. Civ. P. 16(b)(4). District courts have broad discretion under the rules of ci vil 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 fo r 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 re view, 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 issu e 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)). Sti ll, “[t]he overarching inquiry in these overlapping factors is whether the moving party was diligent in pur suing discovery.” Id.

On December 9, 2011, the district court set August 30, 2012 as the deadline for conducting discovery. The Sist ers did not send requests for discovery until August 9, 2012. Though noting that the Sisters had not shown good cause, the c ourt continued the discovery deadline until October 20, 2012. Howe ver, 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 file d a motion to compel. Subsequently, the parties tendered an agreed motion for a further extension in which the Sisters ag reed 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 Sist ers’ representations. The court again warned that it would grant no furt her 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 b een 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 di scovery matters, the parties moved for a further extension on December 14, which the court deni ed. The Sisters again moved to extend the discovery deadline on February 19, 2013. The magi strate judge recommended that the motion be denied, and the district court a dopted that recommendation.
The Sisters now argue that the reason they wa ited so long to make their initial discovery requests was that there was a motion to dismiss pendi ng and they wanted to s ee the results of that motion before they proceeded withdiscovery. After the initial ex tensions, the Sisters claim that they were unable to accomplish their discovery goa ls because of a lack of cooperation from the Red Cross. However, even in light of these tw o facts, the Sisters were clearly not diligent in pursuing discovery. The Sisters waited nearly nine months to submit their initial discoveryNo. 13-4052 Sister Michael Marie, et al . v. Am. Red Cross, et al. Page 28

requests, which were served only a few weeks be fore 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 disc overy within the deadlines set fo rth 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 awar e 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 disc overy 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 Sister s could have, at any time in the year-long discovery period, moved to compel them to act. The record i ndicates that their only motion to compel was essentially withdrawn when an extension was gr anted. Because the Sisters did not diligently pursue discovery, the district court did not abus e its discretion in denying them additional time.

III
Accordingly, for the aforementioned reasons, we AFFIRM the well-reasoned decisions of the district court.