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NONPRECEDENTIAL DISPOSITION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
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” 
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, 
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.