# 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 DITTMA NN

, 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 surc harge for his employee
benefits because he refused to complete a healt h questionnaire and submit to a wellness screening . He sued Quest Diagnostics, which conduct ed the health screening s , under
federal employment

- discrimination laws

. The district judg e dismissed the claims against Quest on the ground that Quest was not his employe r and thus its actions were not covered by the statute s. We affirm. NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 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 th e 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 p rivacy
under Indiana s tate law.

The district court dismissed the suit. First, it granted Xerox ’s and ACS ’s mo tion to compel arbitration. When Dittmann joined ACS and Xerox in 2013, he agree d 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 the m

. ( Dittmann does not contest this order on appeal. )
As f o r 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 t he court granted Dittmann a final opportunity to replead his claims against Quest

.
Dittmann ’s am ended complaint fared no better. The court explained that t he
exhibits attached to the amended complaint refuted Dittmann ’s assertion that Quest
controlled his benefits and was therefore an agent of Xerox

. T he attachments showed
that “all Quest did” was pr ovide 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 ove r th e state

- law claims.

II
On appeal, Dittmann argues that he adequately alleged that he was Quest ’s employe e . 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

. U nder each statute th at Dittmann invokes, an “employee” i s defined as “an individual employe d by any employer.” 42 U.S.C. § 2000e(f); id. § 2000ff(2)(A); id. § 12111(4); 29 U.S.C. § 630(f). An “employer” i s “a person engaged in an industry affecting commerce” and “any agent of su ch 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
Communi ty for Creative Non

- Violence v. Reid , 490 U.S. 730, 73 9

– 40 (1989)). And in applying agency doctrine

, we look primarily to whether an entity has s ufficient
“control” over a particular worker

. S ee 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). T he se attachments state that Xerox alone implemented and assessed the tobacco surcharge.
Th us Xerox

, not Quest, controlled this aspect of his pay. Dittmann responds that Quest provided Xerox with “healthcare informat ion that affected his wages.” That may be
true, but that d oes not m ake 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 w ere not “covered entities” under the Americans with Disabilities
Act because they did not dictate the employment opportunities resulting from those
evaluations ).

Dittmann contends , i ncorrectly, 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 “ p laintiffs may maintain a suit directly against an entity acting as the agent of an employer... o nly under certain circumstances

. ” 709 F.3d at 669 (emphasis added) . S uch 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) ; Spir t 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)). T hese

circumstances are absent here. Although Quest gave information to Xerox, Quest did
not “c ontrol” Dittmann ’s benefits

. Dittmann himself admits that Xero x 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 use d to set his pay. This is not the type of “co ntrol ” that create s an employment relationship under the federal employment

- discrimination law s

.
Because Dittmann ’s complaint conclusively shows that Quest is not his employer, we affirm the judgment of the district court dismissing his case.