William Dittmann v. Quest Diagnostics, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 11, 2018
Decided January 3, 2019
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-1979
WILLIAM DITTMANN,
Plaintiff-Appellant,
v.
QUEST DIAGNOSTICS, INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District
of Indiana.
No. 2:16-cv-16-PPS-PRC
Philip P. Simon,
Judge.
O R D E R
William Dittmann’s employer assessed a $500 surcharge for his employee
benefits because he refused to complete a health questionnaire and submit to a wellness
screening. He sued Quest Diagnostics, which conducted the health screenings, under
federal employment-discrimination laws. The district judge dismissed the claims
against Quest on the ground that Quest was not his employer and thus its actions were
not covered by the statutes. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17-1979 Page 2
I
Dittmann accepted a job in 2013 to work at ACS Human Services, a subsidiary of
Xerox. Two years later, Xerox implemented a wellness program designed to encourage
its employees to stop using tobacco. As part of the program, Xerox annually assessed
each employee a “tobacco surcharge” of $500 for the employee’s healthcare benefits.
Xerox removed the surcharge for employees who completed an online questionnaire
and wellness screening showing that they were tobacco-free. Employees could complete
these screenings at a Quest Patient Service Center, certain Xerox locations, or at their
personal doctor’s office. The online questionnaire was available through Quest’s online
portal.
Because of privacy concerns, Dittmann refused to complete the medical
screening or questionnaire. As a result, he remained obligated to pay the $500
surcharge. Angered, he sued Quest, Xerox, and ACS under laws that regulate
employers: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Genetic
Information Nondiscrimination Act of 2008, id. § 2000ff et seq., the Americans with
Disabilities Act of 1967, id. § 12101 et seq., and the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq. He also brought claims of defamation and invasion of privacy
under Indiana state law.
The district court dismissed the suit. First, it granted Xerox’s and ACS’s motion
to compel arbitration. When Dittmann joined ACS and Xerox in 2013, he agreed to
submit any disputes arising out of his employment with Xerox to arbitration. The
district court concluded that the claims against Xerox and ACS fell within the scope of
this agreement and dismissed them. (Dittmann does not contest this order on appeal.)
As for the claims against Quest, the court explained that they failed because Dittmann
had not pleaded that Quest was his employer or an agent of Xerox. But the court
granted Dittmann a final opportunity to replead his claims against Quest.
Dittmann’s amended complaint fared no better. The court explained that the
exhibits attached to the amended complaint refuted Dittmann’s assertion that Quest
controlled his benefits and was therefore an agent of Xerox. The attachments showed
that “all Quest did” was provide wellness screenings and collect medical information.
Concluding that Dittmann therefore could not assert any federal employment-related
claim against Quest, the judge dismissed the federal claims and declined to exercise
supplemental jurisdiction over the state-law claims.
II
On appeal, Dittmann argues that he adequately alleged that he was Quest’s
employee. His only reason for taking this position is his theory that Quest “controlled”

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No. 17-1979 Page 3
part of his pay as Xerox’s agent. Under each statute that Dittmann invokes, an
“employee” is defined as “an individual employed by any employer.” 42 U.S.C.
§ 2000e(f); id. § 2000ff(2)(A); id. § 12111(4); 29 U.S.C. § 630(f). An “employer” is “a
person engaged in an industry affecting commerce” and “any agent of such a person.”
42 U.S.C. § 2000e(b); id. § 2000ff(B)(i); id. § 12111(5)(A); 29 U.S.C. § 630(b). When these
definitions are not adequate, courts presume that “Congress intended to describe the
conventional master-servant relationship as understood by common-law agency
doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992) (quoting
Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739–40 (1989)). And in
applying agency doctrine, we look primarily to whether an entity has sufficient
“control” over a particular worker. See Frey v. Coleman, 903 F.3d 671, 676 (7th Cir. 2018).
Dittmann has pleaded himself out of court on his contention that Quest
controlled part of his pay and therefore employed him. Like the district court, we may
examine the documents that Dittmann has attached to his complaint and invited this
court to review. See Williamson v. Curran, 714 F.3d 432, 435–36 (7th Cir. 2013). These
attachments state that Xerox alone implemented and assessed the tobacco surcharge.
Thus Xerox, not Quest, controlled this aspect of his pay. Dittmann responds that Quest
provided Xerox with “healthcare information that affected his wages.” That may be
true, but that does not make Quest a controller of his wages. As we observed in
Chapman v. Yellow Cab Cooperative, 875 F.3d 846, 848 (7th Cir. 2017), “[m]any decisions …
hold that one does not become an “employee” of an entity … just because that entity’s
decisions may have some effect on income.” Xerox decided what to do with Quest’s
information. Xerox, therefore, controlled his wages. See Satterfield v. Tenn., 295 F.3d 611,
618 (6th Cir. 2002) (doctors who contracted with employer to examine employees and
their medical records were not “covered entities” under the Americans with Disabilities
Act because they did not dictate the employment opportunities resulting from those
evaluations).
Dittmann contends, incorrectly, that Alam v. Miller, 709 F.3d 662, 669 (7th Cir.
2013) mandates a different result. Alam relied on Title VII’s provision defining an
employer to include “any agent” of the employer. Id. (quoting 42 U.S.C. § 2000e(b)). But
it also warned that “plaintiffs may maintain a suit directly against an entity acting as the
agent of an employer…only under certain circumstances.” 709 F.3d at 669 (emphasis
added). Such circumstances may be present where an agent “exercises control over an
important aspect of [the plaintiff’s] employment” or where “an employer delegates
sufficient control of some traditional rights over employees to a third party.” Id.
(quoting Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Ass’n of New England,
Inc., 37 F.3d 12, 17 (1st Cir. 1994); Spirt v. Teachers Ins. & Annuity Ass’n, 691 F. 2d 1054,

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No. 17-1979 Page 4
1063 (2d Cir. 1982), vacated and remanded on other grounds, 463 U.S. 1223 (1983)). These
circumstances are absent here. Although Quest gave information to Xerox, Quest did
not “control” Dittmann’s benefits. Dittmann himself admits that Xerox determined
what to do with that information. Thus, even under Alam, Dittmann faces the same
problem as before: he has alleged that Quest affected his wages by supplying
information that Xerox used to set his pay. This is not the type of “control” that creates
an employment relationship under the federal employment-discrimination laws.
Because Dittmann’s complaint conclusively shows that Quest is not his
employer, we affirm the judgment of the district court dismissing his case.

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