seven eighty aaa jeana at age discrimination and several state privacy laws his case was decided against him on a quest motion to dismiss he's asking this honorable cour imagining how quest i'd gnostics in any way was his employer as opposed to simply an agent of the xerox that they use for a particular purpose you know they maybe employ people to landscape the buildings you know that they're in they employ people perhaps to do payroll re employed people to handle the benefits they employ i'm sure they employ outside firms for any number employment benefits we are looking at a situation where and who is acting and war trying to bring the agent to under liability for the employers these acts are  suppose there were a company company which had handles a role was part of the job for a company to keep track of the employees personal days and vacation personal day or not but but i don't really don't see how that makes my company a an agent either for employment as in the sense of being a joint employer or i think you are according to that hypothetical sure and if the employee wanted to have access to that agent to correct the mistake and that agent refused access then it would be a problem for d h and i think your honor level for everybody except people get money lopped off if they can show that they're nonsmokers you're right if mr didden didn't show that he was a non tobacco user he had a wage deduction and he is  definitely an agency relationship as far as a xerox determining that this is its policy i think that question determined its own policies that affected bil he wanted nothing to do with but first of all about build it and he is a senior development systems specialist with xerox you know understands computers he understands how data is shared amongst entities i take just a nicotine only test i don't want to talk much i don't want to ducks my wages deducted i'm not a smoker and i said no you can't do that unless you also give us a medical questionnaire and answer all of these go visit a quest clinic so he did he works in crown point there happens to be a quest clinic in crown point he went there and asked the employees can i take just a nicotine only test they said no you can't do that you got to take the wellness test you got to go on the computer he said listen all i want to do is do this and i look at the questions on the wellness exam on the questionnaire and they said nope can't do that you got to get on the computer and said ok i've got a prescription cut me test it'll tell you whether  only way that there can be liability under title seven or geno or the a v a to question this is if they're found to be an agent of the employer with a significant control  control over an important aspect of employment under the alan case and we don't have that here what we have here is that think questions ministers this wellness program now what the plaintiffs always wants to look over is that there were three ways for him to avoid the tobacco surcharge in this case the first way was to go through the  testing from quest as part of the wellness program the second way was to enroll in a smoking cessation program that another entity provided to quest employees the third way that he could have avoided the charge was to go to his own doctor and fill out a physician form that was to indicate to quit to xerox that he was not a smoker so there there were avenues available to mr dyckman that had nothing to do with participation in quest wellness program and so when you look at the situation here when you look at that by factor test under where you run through the factors to decide whether or not question is potentially the employer of mr deadman it's clear that question is not employed in employer of mr deadman all qu information off the grid so to speak you know it seems that his real complaint is that these questionnaires you know i don't know delve into whatever illnesses he's ever had in his life and i don't know what else they do but it's too much is is that the recourse that he wanted to avoid the back of a surcharge and to not participate in that on this program was available to him as a part of it and was indicated in the supplemental and surcharge which of course did not charge him that was iraq's that would charge in that form so i believe your honor that the goal was achievable this th goal of not responding to various health questions and avoiding the tobacco surcharge was available to mr and for whatever reason he chose not to take that path with this wellness program exclusively focused on tobacco or was it a broader program about you know a certain number of hours of exercise that we are diet or anything else i believe your honor again there's nothing in the record with regard to that but i believe that the wellness program itself was focused on additional health factors over and above the tobacco surcharge but the statement from mr desmond was is that he didn't want he was fine with not for the participating in the wellness program and receiving the additional benefit where he did where his complaint centered on was the tobacco surcharge which just changed during the course of the case and the only point is that a yearly or monthly i can't remember whether on your annual five hundred correct or whatever it is now yeah yeah i think it's very day i think during the course of this case from about four hundred to six hundred dollars a year that xerox charges its employees who are smokers but the important aspect is is that for the claims because the court once they've got rid of the federal cause of action and it really push something going all jurisdiction that to impose liability upon quest diagnostics for those causes of action that the quest i got six has to be found to be m lawyer and when you look at the factors those factors are not present quest diagnostics should not be found to be mr timmins employer for liability under those costs of action and we believe that the district court libya why didn't mr didn't use the form because he had to download it from qwest diagnostics website what happened when he went to qwest diagnostics website the website said before you get in i want you to allow us to put in electronic cooking on your computer so we can share your information with unknown third parties we want you to consent that we can share your medical information with unknown third parties we want you to submit to the jurisdiction of new jersey we want you to indemnify us so mr dimon didn't get the four we happen to have it as an exhibit if you look at the exhibit of the form it shows all of this other information that is mandatory and one little check box for nicotine use so he had to provide blood samples doctors names e mails addresses cholesterol levels stuff that didn't pertain to the nicotine test with that we know that quest controls the means the stuff that mr dimon would use to access this employee benefit it's twenty first century data and we're asking the court because the district court judge expressing confusion in his decision