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Dittmann v. ACS Human Services LLC

United States District Court, N.D. Indiana, Hammond Division

September 26, 2016




         This employment-related dispute centers around a wellness program that required employees to provide certain medical information or potentially face an annual surcharge. William Dittmann did not provide the medical information for participation in the program and the results of that decision gave rise to this action against Dittmann's employer (ACS Human Services), his employer's affiliate (Xerox Business Services, LLC), and an alleged agent of Dittmann's employer (Quest Diagnostics, Inc.). Dittmann alleges violations of a bevy of federal employment-related statutes. This matter presently is before me on a Motion to Compel Arbitration filed by Xerox Business Services and ACS [DE 27], and Defendant Quest Diagnostics' Motion to Dismiss the Second Amended Complaint [DE 39]. Because my rulings on these two motions will decide the trajectory of this action, I will address them together.


         The facts come from the second amended complaint, which I accept as true for present purposes. William A. Dittmann is an employee of ACS Human Services and participates in the company's health insurance program. [DE 35 at ¶17.] Xerox Business Services is an affiliate of ACS and has significant input into its health insurance decisions and benefits and Dittmann's access to those benefits. [Id. at ¶13.] For ease of reference, I will refer to Xerox Business Services and ACS collectively as Xerox. The precise relationship between Xerox and Quest is murky. According to the second amended complaint, Quest was authorized by Xerox to provide employees access to health insurance information via, among other means, its online computer systems. [Id. at ¶14.] That's about all we know about the relationship.

         Xerox implemented a wellness program and, in 2014, Dittmann was required by the program to take a nicotine test or pay a surcharge of $500 per year. [Id. at ¶¶20-21.] Dittmann alleges that the test did not only test for nicotine but also tested for other health related items that were not related to Xerox's business. [Id. at ¶22.] Dittmann alleges that in order to take the test, Defendants required him to: 1) agree to indemnify Quest; 2) agree to submit to the jurisdiction of New Jersey; 3) allow a third party to electronically access his private information by placing computer tracking software (known as “Cookies”) on his private computer system; and 4) allow a third party to share his personal health information with third parties for reasons not related to the test. [Id. at ¶¶23-26.] Dittmann and his spouse were offered $1, 200 as an incentive to submit to medical inquiries and complete a screening assessment. [Id. at ¶27.] But Dittmann was not allowed to add his spouse to his insurance unless she took the test and completed the assessment. [Id. at ¶29.]

         On December 1, 2014, Xerox put in place procedures that would assess Dittmann a $500 surcharge for not participating in the test. [Id. at ¶28.] In response, Dittmann visited a Quest clinic in Crown Point, Indiana “in an attempt to receive his employee benefits and remove the nicotine surcharge from his paycheck” and asked that he only be tested for nicotine use and be exempt from filling out the screening assessment; at the very least he wanted to see the screening assessment before agreeing to complete it. [Id. at ¶¶33-34.] Quest refused to allow Dittmann to review the screening assessment and also refused to allow him to only be tested for nicotine. [Id. at ¶¶35-36.] As a result of Dittmann's refusal to take the full test and complete the screening assessment, he was labeled by Quest as a smoker, when he claims that he is not. [Id. at¶¶ 18, 44.]

         Dittmann claims that he filed a written appeal through Xerox's appeal process, which went ignored by Xerox. [Id. at ¶¶49-50.] Dittmann alleges that Xerox regularly acts on the appeals of other younger employees. [Id. at ¶51.] He claims that the Defendants communicated to “others” that he is a nicotine user, “which tends to lower a person's reputation, ” despite knowing that he was not. [Id. at ¶53.] He claims that as a result of this communication, he will always carry the stigma of being a smoker, particularly with insurance companies. [Id. at ¶54.]

         Dittmann also claims that he was retaliated against for filing an appeal and an EEOC complaint, which resulted in Xerox intentionally altering Dittmann's benefits and demanding he take unreasonable computer security measures while he was off duty. [Id. at ¶¶58-60.] He alleges that as a result of the Defendants actions, he has been “held out in the public eye as being a smoker or having private information that he did not want to share and therefore must be hiding something of a negative sort” and this has caused Dittmann's colleagues and vendors to treat him differently and create a hostile work environment. [Id. at ¶61.]

         Dittmann brought this action against ACS, Xerox Business Services, and Quest alleging violations of Title VII of the Civil Rights Act of 1964, the Genetic Information Nondiscrimination Act of 2008, the Health Insurance Portability and Accountability Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, [1] as well as a state law claim of defamation. [DE 35.] ACS and Xerox Business Services seek to compel Dittmann to submit his claims to arbitration, arguing that he improperly brought this suit in violation of their Dispute Resolution Plan, which Dittmann accepted as a condition of his employment with ACS in September 2013. [DE 26.] For its part, Quest seeks the outright dismissal of the suit on the grounds of failure to state a claim. [DE 38.]


         I will begin with the motion to compel arbitration. When Dittmann was hired by Xerox (working for ACS Human Services) he signed an employment agreement clumsily named the “Agreement to Be Bound By the Xerox Business Services Dispute Resolution Plan and Rules (“DRP”) Otherwise Referred to as the Offeree Arbitration Agreement or ‘Agreement.'” [DE 27-1 at 38.] There are two documents at issue. There is the actual Dispute Resolution Plan, which I'll call the DRP, and then there is an acknowledgment document signed by Dittman wherein he acknowledges receiving the DRP. I will refer to this latter document as the “DRP Acknowledgment.” The DRP Acknowledgment states in relevant part:

Having been accepted for employment and as part of my acceptance, I CONSENT TO THE EXCLUSIVE FINAL AND BINDING RESOLUTION BY ARBITRATION UNDER THE DRP OF ALL DISPUTES (as defined in the DRP) INCLUDING LEGAL CLAIMS, past, present or future, arising out of, relating to, or concerning my employment with Xerox Business Services, LLC (“XBS”). . . . Further, the Arbitrator, and not any federal, state, local court or agency shall have the exclusive authority to resolve any Dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including but not limited to any claim that all or part of this Agreement is void or voidable.
The promises by XBS and me to arbitrate Disputes constitute adequate and sufficient consideration to support this Agreement and the DRP. I understand that acceptance of this Agreement and the DRP are conditions of my employment. . . . I UNDERSTAND THAT THIS AGREEMENT AND THE DRP REQUIRE THAT DISPUTES REGARDING THE MATTERS SUBJECT TO THIS AGREEMENT BE SUBMITTED TO ARBITRATION RATHER THAN A JUDGE AND/OR JURY IN COURT AND . . . I AM GIVING UP ANY RIGHT I MIGHT OTHERWISE POSSESS TO HAVE A JURY OR JUDGE TRIAL.

[DE 27-1 at 38-40 (emphasis in original).] The DRP Acknowledgment notes that Dittmann received and read the DRP and the DRP Acknowledgment. [DE 27-1 at 41.] The ...

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