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Marie v. American Red Cross

United States Court of Appeals, Sixth Circuit

November 14, 2014

SISTER MICHAEL MARIE; SISTER MARY CABRINI, Plaintiffs-Appellants,
v.
AMERICAN RED CROSS; ROSS COUNTY EMERGENCY MANAGEMENT AGENCY; MARY MCCORD; DAVID BETHEL, Defendants-Appellees

Argued August 7, 2014.

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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:

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.

Before: ROGERS and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.[*]

OPINION

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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 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

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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 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

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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 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 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

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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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 ...


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