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Dittmann v. ACS Human Services LLC

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

March 1, 2017




         Xerox Corporation has a wellness program that, among other things, encourages employees to stop using tobacco. It seems like a sensible thing to do. This employment-related dispute centers around that program and the fact that it requires Xerox employees to provide health-related information or otherwise face an annual surcharge to the cost of their employee benefits. 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.

         I previously sent the case against ACS and Xerox to arbitration based on Dittmann's employment agreement. I also granted him leave to amend his Second Amended Complaint to address deficiencies in his claims against Quest. Dittmann amended his Second Amended Complaint making the operative complaint his Third Amended Complaint, of which Quest now seeks dismissal. The central issue is whether Quest is Dittmann's employer for purposes of liability under several federal statutes. If it is not, then this case is going nowhere and must be dismissed. I conclude that because Dittmann has once again failed to adequately allege facts that plausibly show that Quest was his employer, the complaint is once again dismissed, but this time the dismissal is with prejudice.


         The facts come from the Third Amended Complaint, which I accept as true for present purposes. William A. Dittmann is an employee of Xerox and participates in the company's health insurance program. [DE 51 at ¶21.] Permit me to pause at this point to point out an inconsistency between Dittmann's Second Amended Complaint and the now operative Third Amended Complaint. In the Second Amended Complaint, Dittmann alleged he was an employee of ACS. But in the present complaint he alleges he is in employee of Xerox. [Compare DE 35 at ¶17 with DE 51 at ¶21.] Because Dittmann alleges and refers to his employer as Xerox in the Third Amended Complaint, I will refer to Xerox as his employer for purposes of this opinion but, as we will see in a moment, whether Dittmann's employer is ACS or its affiliate, Xerox, makes no difference to the viability of Dittmann's claims against Quest.

         The precise relationship between Xerox and Defendant Quest still remains somewhat murky despite Dittmann's attempt to bulk up his factual allegations in the Third Amended Complaint. According to the Third Amended Complaint, Quest became an agent of Xerox when it was hired via a written contract to manage and monitor its employees' health benefits. [Id. at ¶15.] Dittmann alleges that Quest “controlled access to employee health benefits for Xerox employees . . . via, among other means, Quest's online computer systems.” [Id. at ¶16.] The new version of the complaint alleges that Quest “provides customizable screening, reporting, and other wellness solutions tailored to fit the needs of Xerox” and “helps manage the ins and outs of the unique wellness screening program such that it accomplishes the goals established by Xerox.” [Id. at ¶¶19-20.]

         This lawsuit centers around Xerox's wellness program that, among other things, encourages employees to stop using tobacco. Because Dittmann's description of Xerox's program, as it is described in his complaint, is a little confusing and, at times, somewhat misleading, I will refer to the exhibits that he attached to the Third Amended Complaint, which outline the program. Dittmann's Third Amended Complaint alleges that Xerox put the program in place in December 2014 and so I will, therefore, described the program as outlined in the 2015 Incentive Overview, which is dated August 2014, and which is attached to the Third Amended Complaint as Exhibit 9. [DE 51-1 at 46.]

         Starting in 2015, Xerox assesses a $500 tobacco surcharge to every employee and their covered spouse/domestic partner enrolled in a Xerox medical plan. [Id. at 47.] In order to remove this surcharge, Xerox requires that each employee and their covered spouse/domestic partner complete an online health questionnaire and participate in a wellness screening. [Id.] If the screening indicates use of tobacco, the employee or their covered spouse/domestic can remove the surcharge by enrolling in and completing the free Quit For Life tobacco cessation program. [Id.] In addition, by completing the online health questionnaire and wellness screening, the employee and their covered spouse/domestic partner would each receive a $600 wellness incentive to lower their annual plan contributions. [Id. at 48.]

         It appears from Dittmann's allegations and Xerox's literature that Xerox contracted with Quest to help administer the program. As Xerox's literature explains, employees had the option of completing a wellness screening at a Xerox location, by visiting a Quest Patient Service Center, or by taking a form to their personal doctor. [Id. at 50.] In addition, Dittmann alleges that the online health questionnaire was accessed through Quest's online portal. [DE 51 at ¶28.] Xerox's literature explains that:

[N]o one at Xerox, including the people administering your benefits or maintaining the BenefitsWeb website, can view your personal health information. Benefits Web has a protected direct data feed from Quest Diagnostics so only you can view your biometric data. Quest Diagnostics shares aggregate health risk information with Xerox health care partners solely for the purpose of supporting efforts to promote health and wellness. If your results indicate you can benefit from a Xerox wellness program, you may receive a call inviting you to join. Participation in Xerox wellness programs is completely voluntary.

[DE 51-1 at 51.]

         Dittmann refused to participate in the Xerox program and take the required tests “due to the excess amount of private medical information that would be disclosed to both Xerox and Quest for no reason related to nicotine testing.” [DE 51 at ¶34.] Dittmann alleges that he asked Quest to make an accommodation to allow him to take a nicotine specific test and Quest refused unless he also completed the online health questionnaire. [Id. at ¶¶39-40.] In addition, Dittmann alleges that in order to take a nicotine-specific 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 ¶¶42-45.] As a result of Dittmann's refusal to complete the online health questionnaire and get a wellness screening, the tobacco surcharge remained on his employee record and allegedly “he was labeled as being a smoker” despite the fact that Xerox and Quest knew this information to be false. [Id. at ¶¶41, 66, 73.]

         Among other things, Dittmann alleges that Xerox and Quest shared his personal information with “third parties” and caused to be reported to “various third parties” his nicotine status along with his personal identification information. [Id. at ¶¶67-68.] He alleges that Xerox and Quest 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 ¶85.] 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 ¶87.] In addition, Dittmann also claims that he was retaliated against for filing an appeal, which resulted in a reduction in his employment benefits. [Id. at ¶¶92-95-60.]

         Dittmann claims that Quest violated Title VII of the Civil Rights Act of 1964, the Genetic Information Nondiscrimination Act of 2008 (GINA), as well as what appear to be claims for defamation and invasion of privacy under Indiana State law, although these are not clearly delineated. [DE 51.] There is also a reference to the Americans with Disabilities Act in paragraph 1 of the Third Amended Complaint and in Dittmann's response to Quest's motion to dismiss. But these are insignificant since there does not appear to be a specific count ...

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