Employee Health & Safety

ROSENBAUM, Circuit Judge:

The Family Medical Leave Act (“FMLA”) is a federal statute that entitles eligible workers who need to recover from a serious injury to take up to twelve weeks of unpaid leave during any twelve-month period. Employers are prohibited from interfering with, restraining, or denying an employee’s efforts to exercise any FMLA right. Separately, most states require employers to provide their employees with workers’ compensation benefits. Workers’ compensation allows an employee who is injured in a work-related incident to receive payments for all reasonable medical care and lost wages resulting from that injury.

Sometimes the benefits of these laws can overlap. That’s what happened here. Now, Defendant-Appellee Hospital Housekeeping Systems seeks to use one—workers’ compensation—as a shield against the other—the FMLA. Hospital Housekeeping’s employee Plaintiff-Appellant Noorjahan Ramji seriously injured her knee while at work. Hospital Housekeeping told her nothing about her rights under the FMLA, instead handling the injury solely as a workers’ compensation claim.

After a few days off and a temporary light-duty assignment, Ramji received medical clearance to resume her regular-duty position. But before Hospital Housekeeping would allow her to do so, Ramji first had to pass an essential-functions test, which required her to complete certain physical tasks that the doctor who cleared her was not advised of. Among other things, Ramji had to repeatedly engage in deep squats and bend to one knee. Though Ramji was able to perform several of these exercises, she began to experience pain in her injured knee before she finished all of them. As a result, Ramji did not pass the test. So Hospital Housekeeping discharged Ramji. At no point before Hospital Housekeeping fired Ramji did Hospital Housekeeping advise Ramji of her rights under the FMLA or give Ramji an opportunity to take twelve uninterrupted weeks of leave to rehabilitate her knee, even though the FMLA entitled her to that relief.

Ramji filed suit for interference with her FMLA rights. At the district court, the parties filed cross-motions for summary judgment. Hospital Housekeeping sought in part to avoid liability under the FMLA by pointing to its compliance with its workers’ compensation responsibilities. The district court granted summary judgment in favor of Hospital Housekeeping.

But the FMLA does not set up a clash of Titans between itself and workers’ compensation. So providing workers’ compensation benefits cannot absolve an employer of all obligations under the FMLA. For this reason and others, and with the benefit of oral argument, we vacate the entry of summary judgment and remand for further proceedings.

I.

III.

The FMLA entitles employees to take leave for certain family and medical reasons. 29 U.S.C. §§ 2601 and 2612. Among these, an eligible employee may take up to twelve weeks of leave because of a serious health condition that renders the employee unable to perform the functions of her position. § 2612(a)(1)(D). The FMLA also guarantees an eligible employee the right to be restored to her former position, or an equivalent position, at the end of her leave, provided she can execute the essential functions of her job. § 2614(a)(1). But if, after twelve weeks, the employee cannot perform an essential function of her job, her employer may choose to end her employment. 29 C.F.R. § 825.216(c).

Under the FMLA, a covered employer may not interfere with, restrain, or deny the employee’s exercise or attempted exercise of her FMLA rights to coverage, leave entitlement, notice, benefits continuation, and job restoration. 29 U.S.C. § 2615(a)(1); 29 U.S.C. §§ 2601-2654; 29 C.F.R. §§ 825.100-825.803.

To establish an FMLA interference claim, an employee must show she was entitled to a benefit under the FMLA and her employer denied her that benefit. But a technical FMLA violation alone is not enough. Rather, the employee must also “demonstrate some harm” from the alleged interference, and that harm must be “remediable by either”damages’ or ‘equitable relief.’” Below, we address each of these requirements as they relate to Ramji’s claim.

JED S. RAKOFF, United States District Judge.

Kenneth Frilando is a profoundly deaf man whose primary language is American Sign Language (“ASL”). Between 2016 and 2018, Mr. Frilando applied for three civil service positions: bus operator with the Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”), train operator with the New York City Transit Authority (the “NYCTA”), and track worker with the NYCTA. Each position required applicants to pass a multiple-choice exam and “to understand and be understood in English.” The Department of Citywide Administrative Services (“DCAS”) regulates the examination procedures for the train operator, bus operator, and track worker exams and — as a matter of DCAS policy — the exams are not offered in languages other than English. For each exam, Mr. Frilando sought additional time and ASL interpretation of the oral instructions, exam questions, and exam answer choices. The NYCTA and MaBSTOA offered Mr. Frilando extra time and ASL interpretation of oral exam instructions, but denied Mr. Frilando’s request for ASL interpretation of exam questions and answers. Mr. Frilando did not ultimately take the exams for any of the three positions.

Kenneth Frilando then sued the NYCTA and MaBSTOA (collectively, “Defendants”), alleging violations of the Americans with Disabilities Act (the “ADA”) and NY state and city law.

The Court has carefully reviewed the parties’ pretrial submissions, the transcript of the trial, the trial exhibits, and the parties’ post-trial submissions. In addition, the Court has made credibility determinations based, among other things, on its observation of each witness’s demeanor and the consistency and logic of the witness’s accounts. Based on all this, the Court now issues its findings of fact and conclusions of law and, for the reasons that follow, grants judgment in favor of Defendants.

Findings of Fact

Kenneth Frilando is profoundly deaf. With hearing aids, Mr. Frilando can detect environmental noises like car horns, but he cannot understand spoken English and “has extremely poor speech and lip reading skills.” Specifically, Mr. Frilando reads English at only a third-grade reading level. Even with the aid of a dictionary or computerized “auto-correct,” he can write only hesitantly in English. In contrast, “he is completely fluent in American Sign Language.”

To his credit, Mr. Frilando has periodically sought employment, but has had difficulty achieving that goal. Around 2017, Mr. Frilando found the track worker, train operator, and bus operator positions on the career section of the MTA website and reviewed the job description and requirements for each position.

Track workers maintain, install, inspect, and repair subway and elevated train tracks, a job that requires lifting heavy equipment and working in the path of oncoming trains. Because they work under hazardous conditions, track workers work in “gangs” that verbally communicate with one another about the safety aspects of the work being performed. One core function of a track worker is “flagging,” in which track workers verbally communicate with train operators about when it is safe to proceed.

Train operator responsibilities include operating subway cars and trains, preparing trains for road service, making announcements, and “responding to audible signals such as alarm bells, train whistles, horns and radio conversation.”

Bus operators drive passenger buses in compliance with state law and local traffic regulations, collect fares, write reports on “revenues, accidents, faulty equipment and unusual occurrences,” and must be able to “hear horns, buzzers and verbal warnings.”

After reading the requirements for each application, Mr. Frilando applied for each position. He believed he was suited for the MaBSTOA bus operator position and NYCTA track worker position because these positions did not require formal education. However, the train operator position at the NYCTA required a year of “work experience continuous with one employer,” which Mr. Frilando did not have. Although not referenced in the Notices of Examination, the track worker and train operator positions with the NYCTA and the bus operator position with MaBSTOA also require candidates to meet a minimum hearing standard, which Mr. Frilando did and does not meet. Each position also required applicants “to understand and be understood in English,”As noted, Mr. Frilando does not speak English clearly or fluently. Finally, each position requires applicants to take and pass a multiple-choice exam.

Pursuant to Memoranda of Understanding between the NYCTA and DCAS entered into in 2011 and 2018, the NYCTA must adhere to DCAS protocols in the administration and development of civil service exams. Although MaBSTOA is a separate legal entity from the NYCTA, nevertheless, pursuant to a 2006 Memorandum of Understanding, the NYCTA also develops and administers examinations for MaBSTOA positions, adhering to the aforementioned DCAS regulations. Among other things, DCAS regulations specify that all “candidates must be able to understand and be understood in English.” Per DCAS policy, examinations must be administered in English and the questions may not be translated into any other language.

An examination development group (the “Exams Unit”) develops qualifying exams for both NYCTA and MaBSTOA positions after producing a detailed “job analysis,” which must be updated at least every five years. Through field interviews, surveys, and on-the-job observation of employees and their supervisors, the job analysis identifies the “knowledge, skills, and abilities required to perform essential tasks on the job.” The Exams Unit also asks “incumbents in the position to give importance and frequency ratings” to these core tasks. Based on incumbents’ ratings, the Exams Unit determines what knowledge, skill, or abilities the qualifying exams should test.

For the train operator position, the Exams Unit determined based on the job analysis that “written comprehension” and “written expression” were sufficiently important and frequently used skills to “be included in the competitive multiple-choice test plan.” Accordingly, 10 of the 60 questions on the train operator exam test “written comprehension” and 9 test “written expression.” Similarly, the job analysis for the track worker exam indicates that “written comprehension” and “written expression” abilities should be tested on the qualifying exam.

The bus operator exam was primarily developed for MaBSTOA by an outside company. However, the bus operator exam was also developed using a job analysis report. The job analysis for the bus operator exam indicates that it is “important” for a bus operator to be able to “read and interpret bulletins and directives,” “report unusual circumstances,” and “report delays, mechanical problems and emergencies to the Dispatcher via two-way radio.” Accordingly, the multiple-choice bus operator exam includes questions testing “written comprehension” and “written expression.”

On April 20, 2017, Mr. Frilando emailed the Exams Unit to request an ASL interpreter for the instructions and test questions on the train operator exam. Mr. Frilando submitted an audiological report and a doctor’s note with his accommodation request. Although Mr. Frilando did not initially request additional time in taking the exam, the doctor’s note stated that “as the result of his disability, Mr. Frilando will need some additional time to complete his DCAS testing.”

A month later, Jennifer Garcia, an associate analyst at the NYCTA, informed Mr. Frilando that the NYCTA would provide extra time for taking the exam and an ASL interpreter to interpret the test instructions in ASL but not to interpret the exam questions themselves, adding that “you need to be able to read in English if you want to take the exam.”

While waiting for Mr. Frilando to confirm whether he wanted to take the train operator exam, Ms. Garcia sent the accommodation request and supporting documentation to her manager, Michael Quiery. Mr. Quiery believed that more documentation was needed to support Mr. Frilando’s request for an interpreter. Accordingly, on June 2, 2017, the Exams Unit informed Mr. Frilando that “upon further review of the document submitted to support your request, we can only grant your request for additional time” and sought additional documentation from a licensed medical professional specifically supporting Mr. Frilando’s request for an ASL interpreter.

On November 21, 2017, Mr. Frilando requested ASL interpretation of the instructions and questions on the bus operator exam. On March 1, 2018, Mr. Frilando requested ASL interpretation of the instructions and questions on the track worker exam. A week later, Michael Nigro confirmed that the NYCTA was “in the process of planning your accommodation(s)” for the track worker, train operator, and bus operator exams and inquired whether Mr. Frilando sought additional time as well as ASL interpretation. In response, Mr. Frilando confirmed that he was requesting additional time. Michael Nigro inquired about Mr. Frilando’s calendar availability to take the exams, but Mr. Frilando did not respond until several weeks later. On April 2, 2018, Mr. Frilando confirmed his availability and asked for 100% extra time.

In late August 2018, the Exams Unit ultimately offered Mr. Frilando 200% of the time otherwise prescribed for taking each exam, as well as ASL interpretation of the spoken and printed exam instructions. However, the Exams Unit maintained that it would “not provide translation or interpretation services of test examination questions for any candidate whose primary language is not English,” because “the positions require that the candidate understand and be understood in English.” The NYCTA offered Mr. Frilando several late August and early September 2018 test dates for the track worker, train operator, and bus operator exams, but Mr. Frilando did not take any of the three exams.

Conclusions of Law

Against this factual background, Mr. Frilando argues that Defendants discriminated against him on the basis of disability in violation of the ADA, the NYSHRL, the NYCHRL, and the Rehabilitation Act by failing to accommodate his request for ASL interpretation of the questions and answers on the track worker, train operator, and bus operator exams. For the reasons that follow, the Court concludes that Defendants are not liable for disability discrimination under any of these laws.

To succeed on a reasonable accommodation claim under the ADA, a plaintiff must be “otherwise qualified” for the position, meaning that he “can perform the essential functions of the employment position” at issue “with or without reasonable accommodation.” 42 U.S.C. §§ 12111(8), 12112(a).

When a job applicant claims he or she was denied a reasonable accommodation to take a preemployment exam, courts ask (1) whether the applicant is qualified to perform the essential functions of job with (or without) an accommodation and (2) whether the preemployment exam measures the skills it intends to measure.

This two-step inquiry follows from the text and structure of the ADA. Title I of the ADA prohibits employers from denying a reasonable accommodation to “an otherwise qualified individual with a disability who is an applicant,” unless “the accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). Separately, the ADA specifically addresses the use of preemployment tests in the application process by defining “discrimination against a qualified individual” to include “failing to select and administer tests concerning employment to ensure that, when such test is administered to a job applicant or employee who has an impairment, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired skills (except where such skills are the factors that the test purports to measure).” 42 U.S.C. § 12112(b)(7). However, unlike the general reasonable accommodation provision, the preemployment test provision does not repeat the term “qualified individual,” and thus does not expressly incorporate the requirement that a candidate be able to perform the essential functions of the job.

As a result, Mr. Frilando can succeed on his disability discrimination claim if he can prove either of two things: either that he can perform the essential functions of the track worker, train operator, or bus operator jobs with (or without) an accommodation; or, alternatively, that Defendants’ preemployment exams do not purport to measure English comprehension and expression. The Court considers each in turn.

I. The Essential Functions of the Positions

Mr. Frilando has not proven that he could perform the essential functions of the track worker, train operator, or bus operator jobs. When determining the “essential functions” of a position, courts look to (1) “the employer’s judgment as to which functions are essential,” (2) “written job descriptions prepared before advertising or interviewing applicants for the job,” (3) “the amount of time spent on the job performing the function,” and (4) “the work experience of past incumbents in the job.” 29 C.F.R. § 1630.2(n)(3). The essential functions of a position “are a matter of judgment and opinion,” and “the NYCTA has a statutory responsibility to operate the transit system ‘for the safety of the public.’” The NYCTA “may properly deem” a function essential for operating public transport because the function “conduces to the safety of passengers and because it serves to limit NYCTA’s tort liability in situations where an impairment might cause an accident as well as where it may be alleged to have done so.”

The NYCTA and MaBSTOA consider both the ability to engage in oral and written communication in English and sufficient hearing ability to meet the minimum hearing standard to be essential to the jobs here in issue. Because the job analyses are based on interviews with incumbents and survey data on the importance and frequency of certain tasks in each position, the job analyses are also instructive on the “essential functions” of each position. In addition, the Notices of Examination are “written job descriptions prepared before advertising or interviewing applicants for the job,” and should also be given significant weight when analyzing the essential functions of the track worker, train operator, and bus operator jobs. 29 C.F.R. § 1630.2(n).

The job analyses and Notices of Examination indicate that the essential functions of the track worker position include spoken communication with train operators and track workers about track hazards. The essential functions of the train operator position include making announcements in English and responding to bells, whistles, horns, and radio conversation. The essential functions of the bus operator position include writing reports on accidents and defective equipment, hearing horns and buzzers, and understanding verbal warnings in English. These functions are conducive to the safety of passengers, and thus the NYCTA and MaBSTOA have reasonably deemed them essential. Mr. Frilando is not qualified for any of the positions for which he applied, both because, as he concedes, he cannot understand or be understood in spoken English, and because trial testimony shows that Mr. Frilando cannot satisfy the minimum hearing standard for any position.

II. Defendants’ Use of Preemployment Exams

Mr. Frilando also has not proven that Defendants’ preemployment exams do not intend to measure English comprehension. While the civil service exams may not have been designed to identify a particular grade level of reading proficiency, the exams are designed to test the written comprehension and expression necessary to perform transit job functions. The Exams Unit determined that the track worker, train operator, and bus operator exams should test “written comprehension” and “written expression.” The Notices of Examination for the train operator and track worker exams confirm that the multiple-choice exams may test “the ability to understand written sentences or paragraphs” or “to use English for words or sentences in writing so others will understand.”

The Court’s review of the evidence related to the exams — including a review of one of the current examinations — convinces the Court that the tests not only purport to measure English comprehension and expression, but also do in fact function as English comprehension and expression tests. For instance, certain exam questions test only whether applicants can read signs to write accurate reports. Because the exams plainly purport to and do measure comprehension of written English and Mr. Frilando’s proposed accommodation would eliminate that very skill, Mr. Frilando cannot prove that Defendants discriminated against him in test selection or administration within the meaning of 42 U.S.C. § 12112(a).

Catherine C. Blake, United States District Judge.

Lauren Searls brings this action against Johns Hopkins Hospital (“JHH”), claiming that the defendant discriminated against her on the basis of disability in violation of Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12112(a) (the “ADA” or “Title I”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”).⊕The Rehabilitation Act (1973), 29 U.S.C. § 701 et seq., prohibits disability discrimination by federal government agencies, federally-funded programs, and federal contractors. The employment discrimination standards under the Rehabilitation Act are the same as under the ADA. 29 U.S.C. §§ 791(f) and 794(d).

She seeks declaratory and injunctive relief, compensatory damages, attorneys’ fees and costs, and other appropriate equitable and legal relief. The plaintiff has filed a motion for partial summary judgment on the issue of liability under the ADA and Section 504, leaving the issue of damages to be resolved at trial. The defendant has filed a cross-motion for summary judgment on all of the plaintiff’s claims. For the reasons stated below, the court will grant the plaintiff’s motion for partial summary judgment, and deny the defendant’s cross-motion for summary judgment.

BACKGROUND

Searls is a deaf 2012 graduate of the Johns Hopkins School of Nursing. She can read lips but understands better through American Sign Language (“ASL”). When communicating with hearing individuals, she voices for herself. As a nursing student, Searls completed two clinical rotations in the Halsted 8 unit at JHH. During her clinical placements at JHH, the School of Nursing provided a full-time ASL interpreter. At the end of her final rotation, she received a faculty summary of her clinical performance. In the summary, the faculty member wrote that Searls “worked well with others on the team and communicated appropriately and with empathy with the patients and their families.” Under “overall performance,” the faculty member wrote:

Lauren provided quality nursing care in a very professional, caring and skilled manner. She has shown a strong work ethic and very positive attitude that helped to create a very positive work environment. She has performed as an entry-level graduate nurse on Johns Hopkins Hospital Halstead sic 8 unit. Lauren Searls has met all of the course objectives at the expected and frequently at a higher level.

On July 13, 2012, a few days before Searls’ graduation from the School of Nursing, Nurse Manager Stacey Rotman sent Searls an email giving her advance notice that she would be posting two openings for Nurse Clinician I positions in Halsted 8 and encouraging Searls to apply. Rotman later sent her an e-mail with the two job postings.

JHH’s job description of the Nurse Clinician I position states that a nurse is responsible for coordinating care, providing evidence-based patient care, working collaboratively, supporting safety standards, and using resources in a cost-effective manner. A requisite skill is “highly effective verbal communication and interpersonal skills to establish working relationships.” Communication is listed as an “essential job function,” and a nurse is required to “listen actively to opinions, ideas and feelings expressed by others and respond in a courteous and tactful manner.” Another essential job function is “communcating unresolved issues to appropriate personnel.” Nurses must also be competent in “general physiologic monitoring and patient care equipment such as defibrillator and glucometer monitor.”

Searls applied for the Nurse Clinician I position, and JHH offered her an interview. She interviewed with Rotman on August 15 and was offered the Nurse Clinician I position on Halsted 8 the next day. Searls accepted the offer that same day. Her offer letter included the provision that “the offer of employment and start date are contingent upon successful completion of a health screening and clearance by the Office of Occupational Health Services.” The annual salary for the position was $59,508.80.

After Searls received the offer, she asked Rotman whom to contact to request an ASL interpreter. Rotman told her to notify the Department of Occupational Health during her pre-employment screening. Searls told a staff member from the Department of Occupational Health that she would require full-time ASL interpretation as an accommodation. The staff member told Searls that Rhodora Osborn, JHH’s ADA Compliance Specialist, would be in touch with her to discuss the request. Mary Henderson from the Department of Occupational Health sent Osborn an email informing her that Searls “has a hearing deficit since age 2 and has bilateral hearing aids” and that she was “requesting a sign language interpreter.” Osborn then notified Kate Demers, the ADA/Accessibility Consultant at JHH at the time, and spoke with Henderson about Searls’ request for an interpreter.

Demers investigated the cost of providing one or two interpreters and determined that the average annual salary of an ASL interpreter proficient in medical terminology would be between $40,000 and $60,000 and concluded that Searls would require a team of two interpreters with her at all times at an annual cost of $240,000. In 2012, Halsted 8 had an operational budget of $3.4 million. Halsted 8 was a part of JHH’s Department of Medicine, which had an operational budget of $88 million in 2012. JHH had an overall operational budget of $1.7 billion in 2012.

On September 12, Demers sent Rotman an email with the estimate of the cost of an interpreter. Rotman forwarded this email to Karen Davis, the director of Medical and Radiology Nursing, commenting, “I know that we can’t afford this.” She also wrote, “They are expecting the department to pay for this. Why isn’t the hospital responsible?” Davis forwarded the emails to her supervisor, Vice President of Nursing Karen Haller, to ask for her thoughts. Davis wrote that Searls “is qualified,” but because of the cost of an interpreter, her “first response to this, given our financial issues, is to respond that I cannot accommodate this.” Davis also speculated that having an interpreter could create scheduling issues and that the interpreter might tell Searls the wrong medicine to use during an emergency situation. Davis concluded her email by writing that “Stacey Rotman tells me the nurse is bright and would be a good hire other than this hearing issue.” In response, Haller wrote, “I do not think we can accommodate this.” Following this exchange, Rotman responded to Demers’ email stating that she had talked to her director “and the department cannot accept the restrictions.” Demers then asked for Rotman’s reasoning, although she noted, “I assume it is cost.” She also wrote, “I want to be sure we have thoroughly investigated all avenues as Searls is a qualified applicant, and we are part of the larger JHH.” Rotman responded, “Yes, the reason is cost.”

On September 17, Demers asked Rotman for a “further breakdown” on the reason for rejecting the accommodation request, explaining her desire to “demonstrate we have shown good effort.” She asked Rotman to “try to include as much information as possible to illustrate hardship on the organization.” The next day, Demers asked Rotman to “determine what your department’s threshold would be for interpreting costs,” explaining that “it would be helpful to know what your department would be able to spend so we can see if a compromise would be a solution.”

Davis, who was also on the email chain, responded to Demers that while she would like to accommodate Searls, “this will not be possible.” She wrote, “There are no other funds to pull from within our department. The interpreters would be an ongoing operating expense that is not budgeted or funded. Thus, our threshold is zero for interpreter costs.” Davis further explained that because the overall budget of the unit was $3.4 million and the overall budget of the department was $88 million, “we would have to lay off 4 nurses to fund this as we cannot incur any new expenses.” She cautioned that laying off nurses “would cause inappropriate nurse patient ratios on this unit and an enormous safety risk.” Davis did not express any of the concerns she had raised in her email to Haller about scheduling and emergency situations, and only raised cost as the reason for not hiring Searls. During the time Searls’ accommodation request was evaluated, no one asked Searls how she would work with an interpreter, including during an emergency situation or when an alarm sounded, or proposed any alternative accommodation.

On September 20, Searls explained to Osborn that she was only seeking one full-time ASL interpreter. A few days later, Demers sent Rotman an email explaining that with one interpreter, instead of two, the cost of providing the accommodation would decrease to $120,000 per year, but “the undue hardship based on cost would still apply from my understanding.” Demers wrote that “a letter is being drafted for Lauren explaining the undue hardship based on cost,” but asked Rotman to let her know “if there are other reasons we should add.” Rotman never provided Demers with any reason other than cost for not hiring Searls.

Osborn and Rotman rescinded Searls’ job offer in a letter dated September 28. They explained:

After several interactive consultations with you and other resources as appropriate, we regret to inform you that we are unable to provide the interpreter services. We are unable to provide the accommodation because of its effect on the resources and operation of the department. As a result of the decision, we must rescind the offer of employment.

In January 2013, after several months of searching for a new job, Searls began working as a nurse at the University of Rochester Medical Center’s Strong Memorial Hospital (“Strong”), where she continues to work today. After Strong offered her the job, Searls requested a full-time ASL interpreter. Strong agreed, and since January 2013, Searls has worked with an ASL interpreter. Searls’ supervisor at Strong testified that Searls’ deafness and use of an interpreter have never negatively affected patient care, her response to alarms, or her participation in codes. At Strong, Searls has exceeded standards on her performance reviews and has received promotions.

ANALYSIS

Searls claims that JHH violated the ADA and Section 504 of the Rehabilitation Act by rescinding her job offer even though she was a qualified individual who, with the accommodation of an ASL interpreter, was fully able to perform the essential job functions of a nurse. The ADA makes it illegal for an employer to “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish a prima facie case on her failure-to-accommodate claim, Searls must show that (1) she is an individual with a disability within the meaning of the ADA; (2) JHH had notice of her disability; (3) she could perform the essential functions of her job with a reasonable accommodation; and (4) JHH refused to make such reasonable accommodation. Section 504 of the Rehabilitation Act mandates that “no otherwise qualified individual with a disability shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). Employment discrimination claims brought under Section 504 are evaluated using the same standards as those “applied under Title I of the Americans with Disabilities Act of 1990.”

Even if Searls establishes her prima facie failure-to-accommodate case, JHH may avoid liability “if it can show as a matter of law that the proposed accommodation will cause undue hardship in the particular circumstances,” or that Searls constituted a “direct threat,” meaning that she posed a significant risk to the health or safety of others that could not be eliminated or reduced to an acceptable level by a reasonable accommodation.

The parties do not dispute that Searls is deaf and therefore has a disability within the meaning of the ADA and Section 504. JHH had notice of Searls’ disability because she had previously worked at the hospital with ASL interpreters during her clinical rotations, and she formally requested an ASL interpreter during her employee health screening. Furthermore, it is undisputed that JHH declined to provide Searls with her requested accommodation of a full-time ASL interpreter and rescinded her job offer as a result. Thus, whether Searls can make out a prima facie case of disability discrimination depends on whether an ASL interpreter was a reasonable accommodation, which in turn depends on whether hiring an ASL interpreter to work with Searls would have reallocated essential job functions.

I. Reasonable Accommodation

The parties dispute whether Searls’ request for a full-time accommodation was reasonable. To defeat an employer’s motion for summary judgment, a plaintiff must “present evidence from which a jury may infer that the proposed accommodation is reasonable on its face, i.e., ordinarily or in the run of cases. A reasonable accommodation is one that is feasible or plausible.” The reasonableness of an accommodation depends on whether it “enables the employee to perform the essential functions of the job in question.” Essential job functions are “functions that bear more than a marginal relationship to the job at issue.”

In defining “reasonable accommodation,” Congress expressly included “the provision of qualified readers or interpreters” as an illustration. 42 U.S.C. § 12111(9)(B). The Second Circuit recently explained that although an ASL interpreter may not always be a reasonable accommodation, interpreters are a well-recognized accommodation:

First, the term “reasonable accommodation” is defined by regulation to include “the provision of qualified readers or interpreters.” 29 C.F.R. § 1630.2(o)(2)(ii). Per se rules are unreliable in the disability context, so ASL interpretive services may not always constitute a reasonable accommodation. But according to the regulations, interpreters are a common form of reasonable accommodation. See 29 C.F.R. § 1630 app. (“Part 1630 lists the examples, specified in title I of the ADA, of the most common types of accommodation that an employer or other covered entity may be required to provide.”).

Searls further supports the reasonableness of her accommodation request through evidence from her experts, her current experience as a nurse at Strong where she works with an ASL interpreter and has received positive performance reviews, and her clinical rotation at Halsted 8 during which she was provided an ASL interpreter and received a positive review. Notably, Rotman offered Searls the nursing position at Halsted 8 because she thought she would be a strong addition to the unit, based in part on her colleagues’ opinion that Searls was able to perform her nursing duties during her Halsted 8 clinical rotation in which she worked with an ASL interpreter. Given that Congress included an “interpreter” as an illustrative example of a “reasonable accommodation,” employers commonly provide interpreters as a reasonable accommodation, and Searls has worked effectively with interpreters at Halsted 8 and in her current nursing job, Searls’ proposed accommodation was reasonable unless, as JHH argues, hiring a full-time ASL interpreter would have reallocated essential job functions.

“A reasonable accommodation ‘does not require an employer to reallocate essential job functions or assign an employee ’permanent light duty.’” “The ADA simply does not require an employer to hire an additional person to perform an essential function of a disabled employee’s position.” The Equal Employment Opportunity Commission’s regulations explain that:

An employer or other covered entity is not required to reallocate essential functions. The essential functions are by definition those that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For example, suppose a security guard position requires the individual who holds the job to inspect identification cards. An employer would not have to provide an individual who is legally blind with an assistant to look at the identification cards for the legally blind employee. In this situation the assistant would be performing the job for the individual with a disability rather than assisting the individual to perform the job.

29 C.F.R. § 1630 app.

In determining which job functions are essential, “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). The two essential job functions included in the JHH Nurse Clinician I job description that are relevant to this case are (1) communicating with patients, family members, and other hospital personnel, and (2) monitoring and responding to alarms. The parties agree that Searls could not have performed these essential functions without an accommodation, but they disagree whether providing an ASL interpreter would have reallocated these duties.

Searls’ case is distinguishable from other cases where providing the requested accommodation amounted to reallocating essential job functions. In those cases, the accommodation request was found unreasonable because the employee requested that another employee perform the entirety of an essential job function, leaving the employee with no portion of the essential job function to perform. In contrast, even with the assistance of an ASL interpreter, Searls would perform a significant portion of the essential job functions of communicating and responding to alarms herself: Searls would decide which questions to ask, she would voice for herself in speaking to patients and other professionals, and she would act in response to alarms. An interpreter, lacking the requisite medical training, could not act independently of Searls to communicate about patient care and respond to alarms.

Therefore, because it is clear that Searls would retain responsibility for a substantial portion of the duties of communicating and responding to alarms if she were provided an ASL interpreter, the question becomes whether her inability to hear affected her ability to communicate and respond to alarms such that she would be “unable to ‘perform’ these essential functions within the meaning of the ADA. When the question is thus a matter of degree a plaintiff fails to perform the essential function only if her failure detrimentally affects the purpose of the employment.” As noted, with the aid of an interpreter, Searls could perform a substantial portion of the essential job functions of communicating and responding to alarms — most importantly, those portions requiring nursing judgment — so that her inability to hear did not detrimentally affect the purpose of employing her as a nurse. A nurse’s duties with respect to communicating and responding to alarms go beyond hearing what patients are saying and hearing an alarm ringing. Searls would have used her own medical expertise and training when speaking to patients, families, and other hospital personnel; providing care based on her exchanges with patients; and taking the appropriate action in response to an alarm after an interpreter communicated the sound of an alarm visually. Therefore, Searls’ accommodation request would not have reallocated the essential job functions of communicating with others and responding to alarms. Searls’ request for a full-time ASL interpreter was reasonable, and Searls has established a prima facie case of disability discrimination.

II. Undue Hardship Defense

JHH argues that providing Searls with an interpreter would have caused an undue hardship on the hospital’s operations. An employer is not liable if it “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” 42 U.S.C. § 12112(b)(5)(A). Title I of the ADA defines “undue hardship” as “an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).” § 12111(10)(A). Subparagraph (B), in turn, provides a non-exhaustive list of relevant factors to be considered:

1. the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

§ 12111(10)(B). To demonstrate undue hardship, the employer “must show special (typically case-specific) circumstances.”

JHH’s overall budget, the Department of Medicine’s operational budget, and Halsted 8’s operational budget are all relevant factors. 42 U.S.C. § 12111(10)(B)(ii)-(iii). Despite the relevance of JHH’s overall budget, JHH’s motion for summary judgment focuses exclusively on the resources and operations of Halsted 8 and the Department of Medicine and ignores the question of how providing an interpreter costing at most $120,000, or 0.007% of JHH’s 2012 operational budget of $1.7 billion, could impose an undue hardship on the hospital.

JHH essentially argues that it had no money in its budget for reasonable accommodations. The employer’s budget for reasonable accommodations is “an irrelevant factor in assessing undue hardship” because “allowing an employer to prevail on its undue hardship defense based on its own budgeting decisions would effectively cede the legal determination on this issue to the employer that allegedly failed to accommodate an employee with a disability. Taken to its logical extreme, the employer could budget $0 for reasonable accommodations and thereby always avoid liability.” In its motion for summary judgment, JHH maintains that “neither of the operating budgets of the Halsted 8 unit nor the Department of Medicine, in which Halsted 8 was then located, had the budgeted resources to absorb the additional $120,000 cost.” JHH then claims that because a nurse’s starting salary is about $60,000, and a full-time ASL interpreter would cost $120,000, “in order to fund the $120,000 annual cost, the nursing unit would have needed to lay-off at least two full-time Registered Nurses.” The nursing unit would only have to discharge two nurses, however, and thereby reallocate the nurses’ combined salaries totaling $120,000, if it had budgeted $0 for reasonable accommodations. JHH’s position in its motion for summary judgment is consistent with the statement from Davis, the director of Medical and Radiology Nursing, that the department’s “threshold is zero for interpreter costs.”

Additionally, even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship. The EEOC’s interpretive guidance on its Title I ADA regulations explains that “simply comparing the cost of the accommodation to the salary of the individual with a disability in need of the accommodation will not suffice.” 29 C.F.R. § 1630 app. Furthermore, it is “particularly relevant” that Strong has been able to accommodate deaf nurses. Because Strong has been able to provide Searls with an ASL interpreter, and because JHH seeks to prevail on its undue hardship defense based on its decision to budget $0 for reasonable accommodations, while failing to account for its $1.7 billion budget, JHH has not met its burden of establishing undue hardship. The plaintiff’s motion for summary judgment on this defense will be granted.

III. Direct Threat Defense

JHH also argues that employing Searls as a nurse would have imposed a direct threat. The ADA defines a “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). An “employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level.” In its motion for summary judgment, JHH notes that some alarms were only auditory and argues that “it would have been a significant patient safety risk to rely on an interpreter, without any nursing training, to engage in nursing judgment by determining which alarm was sounding and to rely on the interpreter’s judgment to determine when a patient emergency was occurring, requiring nursing assistance.”

JHH’s direct threat defense is based on post-hoc rationalizations and is therefore suggestive of pretext. The only statement JHH uses to support its direct threat defense that was made contemporaneously with its decision to rescind Searls’ offer of employment was Rotman’s September 23 email that noted Searls would need an interpreter during all work hours because “she will have unexpected phone calls, call bells ringing, critical patient situations, etc.” Nowhere in the email did Rotman state that Searls could not manage unexpected phone calls, call bells, or critical patient situations with the aid of an interpreter. All other contemporaneous evidence indicates that JHH rescinded the job offer because of the cost of providing a full-time ASL interpreter. Notably, Rotman explained that “the reason is cost” for not providing the accommodation. Additionally, when Demers wrote to Rotman to inform her that she was drafting a letter to Searls explaining “the undue hardship based on cost,” she asked “if there are other reasons we should add please let us know,” but Rotman never provided Demers any other reasons for denying the accommodation. Because JHH did not raise patient safety concerns until after Searls brought the lawsuit, because the issue of patient safety is absent from contemporaneous communications concerning the reason for denying Searls an ASL interpreter, and because the only explanation JHH gave to Searls for revoking her job offer was the cost of providing a full-time interpreter, JHH has not met its burden on its direct threat defense.

JHH’s direct threat defense also fails because the record shows that JHH failed to base its determination “on an individualized assessment of Searls’ present ability to safely perform the essential functions of her job.” Such an assessment must “be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence” and must consider factors such as: “(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.” 29 C.F.R. § 1630.2(r). No such individualized assessment occurred here. Instead, JHH relied on stereotypes or generalizations about deafness. Aside from Rotman’s September 23 email previously discussed, the only other evidence JHH presents to support its direct threat defense is Rotman’s deposition where she testified that she was concerned about Searls’ “ability to function safely as a nurse on Halsted 8” based on whether “she would be able to hear the alarms.” Rotman admitted that she had never observed Searls fail to respond to an alarm. She also said that it “wouldn’t be a safe situation” for a non-nurse to be trained to differentiate between the alarms. Rotman never expressed this concern to Searls. In fact, the defendant does not dispute that no JHH employee ever raised patient safety concerns with Searls or asked how she planned to work with an interpreter to respond to alarms. Rotman speculated that because Searls is deaf and cannot hear alarms she would endanger patient health, but she “failed to provide any medical basis for her conclusion, and she does not discuss whether the safety concerns could be alleviated by reasonable accommodation.” Therefore, JHH has not met its burden of establishing that Searls constituted a “direct threat” to the safety of others at Halsted 8. The court will grant the plaintiff’s motion for partial summary judgment on the issue of direct threat.

ROGERS, Circuit Judge:

SeaWorld of Florida, LLC, operates a theme park in Orlando, Florida, that is designed to entertain and educate paying customers by displaying and studying marine animals. Following the death of one of SeaWorld’s trainers while working in close contact with a killer whale during a performance, the Occupational Safety and Health Review Commission found that SeaWorld had violated the general duty clause, § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1), by exposing the trainers to recognized hazards when working in close contact with killer whales during performances, and that the abatement procedures recommended by the Secretary of Labor were feasible. SeaWorld challenges the order with respect to one citation. Concluding its challenges are unpersuasive, we deny the petition for review.

I.

On February 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a killer whale, during a performance before a live audience in a pool at Shamu Stadium in Orlando. Ms. Brancheau was reclined on her back on a platform a few inches below the water surface. Tilikum was supposed to mimic her behavior by rolling over. Instead, the killer whale grabbed her and pulled her off the platform into the pool, refusing to release her. She suffered traumatic injuries and drowned as a result of Tilikum’s actions.

The Secretary of Labor issued three citations to SeaWorld after an investigation by an Occupational Safety and Health Administration (“OSHA”) compliance officer. Only the second citation is at issue. It alleged two instances of a “willful” violation of the general duty clause for exposing animal trainers to the recognized hazards of drowning or injury when working with killer whales during performances. The first instance related to animal trainers working with Tilikum being exposed to “struck-by and drowning hazards” by being “allowed unprotected contact with Tilikum” while conducting “‘drywork’ performances on pool ledges, slideouts and platforms.” In SeaWorld’s terms, when trainers are out of the pool or on submerged ledges called “slideouts” in water no deeper than their knees, their interactions with killer whales are called “drywork.” Any interaction in deeper water is “waterwork.” According to the Secretary, “among other methods, one feasible and acceptable means of abatement would be to not allow animal trainers to have any contact with Tilikum unless they are protected by a physical barrier.” The second instance concerned animal trainers working with killer whales other than Tilikum who were exposed to struck-by and drowning hazards when they were “allowed to engage in ‘waterwork’ and ‘drywork’ performances with the killer whales without adequate protection.” The Secretary listed as possible abatement methods “prohibiting animal trainers from working with killer whales, including ‘waterwork’ or ‘dry work,’ unless the trainers are protected through the use of physical barriers or through the use of decking systems, oxygen supply systems or other engineering or administrative controls that provide the same or greater level of protection for the trainers.” The Secretary proposed a penalty of $70,000.

Following an evidentiary hearing, the Administrative Law Judge (“ALJ”) found that on February 24, 2010, a “performance” was still in progress when Tilikum seized Ms. Brancheau and pulled her into the pool water. The ALJ found that the first and third elements of a violation of the general duty clause — existence of a workplace condition presenting a hazard that likely caused death or serious physical harm — were established by the events on February 24, 2010: Ms. Brancheau’s death demonstrated that close contact with killer whales was a hazard likely to cause death or serious injury. Based on evidence regarding three previous deaths involving killer whales (beginning in 1991 with Tilikum), SeaWorld’s written training manuals and safety lectures as implemented specifically to Tilikum, and SeaWorld’s incident reports, the ALJ found that the Secretary had established by “abundant” record evidence that “SeaWorld recognized the hazard created when its trainers worked in close contact with Tilikum during drywork performances,” satisfying the second element of a violation. Further, the ALJ found that evidence, including SeaWorld’s incident reports, established that SeaWorld recognized the hazard when trainers worked in close contact with other killer whales; SeaWorld’s statistics regarding the predictability of killer whale behavior, on the other hand, were unpersuasive because not based on rigorous, scientific data. The ALJ concluded that SeaWorld’s claim that “it was unaware working with killer whales presents a recognized hazard is difficult to reconcile with numerous comments made over the years by SeaWorld management personnel, including two corporate curators of animal training whose comments were documented and circulated among all of the SeaWorld parks.”

The ALJ also found that the Secretary had established the fourth element of a violation: feasible abatement of the hazard for trainers working with Tilikum and other killer whales. SeaWorld had not argued, the ALJ noted, that it is infeasible to install barriers or implement a minimum distance between trainers and whales, but rather “considers the extensive safety training of its trainers and the operant conditioning of its killer whales to be an adequate means of abatement that materially reduces the hazard the killer whales present to the trainers.” The ALJ found the Secretary had met her burden to show SeaWorld’s safety program is inadequate. Despite SeaWorld’s contention that its operant conditioning “materially reduces the recognized hazard,” the ALJ concluded that “SeaWorld’s reliance on its trainers to recognize precursors and prevent unpredictable behavior by the killer whales runs counter to the requirements of the Act. ‘The duty to comply with section 5(a)(1) rests with the employer.’” The ALJ further concluded that “SeaWorld holds trainers to a near — impossible standard set by upper management, who engage in a form of Monday morning quarterbacking.” Additionally, the ALJ noted that SeaWorld had already implemented the means of abatement recommended by the Secretary for trainers working with Tilikum — namely, maintaining a minimum distance from the killer whale, or imposing a physical barrier between the killer whale and trainers — and concluded the same or similar abatement involving other killer whales was no less feasible.

Although crediting the testimony of a SeaWorld curator of animal training regarding the educational and inspirational justification for continuing “waterwork” with killer whales, the ALJ concluded that justification “must be measured against the risk incurred by allowing trainers to interact closely with killer whales.” Observing that OSHA has “no specific standard” regulating employees working in close contact with killer whales, and that the Secretary had presented no evidence SeaWorld had a “heightened awareness of the illegality of its conduct” or manifested “plain indifference to employee safety,” the ALJ found that violations were “serious,” not “willful,” and imposed a fine of $7,000 for the general duty clause violation, emphasizing that his order was limited to show performances. SeaWorld unsuccessfully sought discretionary review by the Commission, whereupon the ALJ’s decision and order became final.SeaWorld petitions for review of the general duty violation.

II.

The general duty clause, § 5(a)(1) of the Occupational Safety and Health Act, provides: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). As explained by the House Committee on Education and Labor, “bearing in mind the fact that there is no automatic penalty for violation of the general duty, this clause enables the Federal Government to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover this situation.” In a seminal case this court, in turn, observed that “though novel in approach and sweeping in coverage, the legislation is no more drastic than the problem it aims to meet.” Notwithstanding the “unqualified and absolute” textual imperative that the workplace be “free” of the recognized hazard, the court further observed that “Congress quite clearly did not intend the general duty clause to impose strict liability: The duty was to be an achievable one”. So understood, the court held that “all preventable forms and instances of hazardous conduct must be entirely excluded from the workplace.”

“To establish a violation of the General Duty Clause, the Secretary must establish that: (1) an activity or condition in the employer’s workplace presented a hazard to an employee, (2) either the employer or the industry recognized the condition or activity as a hazard, (3) the hazard was likely to or actually caused death or serious physical harm, and (4) a feasible means to eliminate or materially reduce the hazard existed.” Tempering the range of potential remedies that might be imposed upon finding a violation of the clause, the court explained: “In other words, ‘the Secretary must prove that a reasonably prudent employer familiar with the circumstances of the industry would have protected against the hazard in the manner specified by the Secretary’s citation.”’

SeaWorld contests only the second and fourth elements regarding recognized hazard and feasibility. In challenging the general duty citation, SeaWorld does not perforce contend that the Secretary of Labor or the Occupational Safety and Health Review Commission lack legal authority to require employers to provide a reasonably safe working environment for employees. Rather, SeaWorld takes issue with the interpretation by these officials of what constitutes a recognized hazard that would subject an employer to citation under the Occupational Safety and Health Act. First, SeaWorld contends that the finding that it exposed its employees to a “recognized hazard” is unsupported by substantial evidence. Second, it contends that “when some risk is inherent in a business activity, that risk cannot constitute a ‘recognized hazard.’” Pet’r Br. at 33. Third, it contends that the ALJ’s decision was based on unreliable expert testimony about the extent of killer whale predictability after SeaWorld’s training and precautions. As regards the feasibility of physical barriers and minimum distances SeaWorld contends that the Secretary failed to prove feasible abatement methods (or that SeaWorld had already implemented these measures), and that the ALJ failed to consider evidence these abatement measures present additional hazards and erred because eliminating close contact changes the nature of a trainer’s job. Finally, SeaWorld contends the general duty clause is unconstitutionally vague as applied because SeaWorld lacked fair notice of the Secretary’s abatement measures.

The court must uphold the Commission’s decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The factual findings of the Commission, “if supported by substantial evidence on the record considered as a whole, shall be conclusive.” 29 U.S.C. § 660(a). Under this standard, the court must “uphold Commission findings so long as there is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Likewise, the court “must accept the ALJ’s credibility determinations unless they are patently unsupportable.” The court will “defer to the Secretary’s interpretation of the Act and regulations, upholding such interpretations so long as they are consistent with the statutory language and otherwise reasonable.”

JUSTICE STEWART delivered the opinion of the Court.JUSTICE

The Occupational Safety and Health Act of 1970 (Act) prohibits an employer from discharging or discriminating against any employee who exercises “any right afforded by” the Act. The Secretary of Labor (Secretary) has promulgated a regulation providing that, among the rights that the Act so protects, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. The question presented in the case before us is whether this regulation is consistent with the Act.

I

The petitioner company maintains a manufacturing plant in Marion, Ohio, for the production of household appliances. Overhead conveyors transport appliance components throughout the plant. To protect employees from objects that occasionally fall from these conveyors, the petitioner has installed a horizontal wire-mesh guard screen approximately 20 feet above the plant floor. This mesh screen is welded to angleiron frames suspended from the building’s structural steel skeleton.

Maintenance employees of the petitioner spend several hours each week removing objects from the screen, replacing paper spread on the screen to catch grease drippings from the material on the conveyors, and performing occasional maintenance work on the conveyors themselves. To perform these duties, maintenance employees usually are able to stand on the iron frames, but sometimes find it necessary to step onto the steel mesh screen itself.

In 1973, the company began to install heavier wire in the screen because its safety had been drawn into question. Several employees had fallen partly through the old screen, and on one occasion an employee had fallen completely through to the plant floor below but had survived. A number of maintenance employees had reacted to these incidents by bringing the unsafe screen conditions to the attention of their foremen. The petitioner company’s contemporaneous safety instructions admonished employees to step only on the angle-iron frames.

On June 28, 1974, a maintenance employee fell to his death through the guard screen in an area where the newer, stronger mesh had not yet been installed. Following this incident, the petitioner effectuated some repairs and issued an order strictly forbidding maintenance employees from stepping on either the screens or the angle-iron supporting structure. An alternative but somewhat more cumbersome and less satisfactory method was developed for removing objects from the screen. This procedure required employees to stand on power-raised mobile platforms and use hooks to recover the material.

On July 7, 1974, two of the petitioner’s maintenance employees, Virgil Deemer and Thomas Cornwell, met with the plant maintenance superintendent to voice their concern about the safety of the screen. The superintendent disagreed with their view, but permitted the two men to inspect the screen with their foreman and to point out dangerous areas needing repair. Unsatisfied with the petitioner’s response to the results of this inspection, Deemer and Cornwell met on July 9 with the plant safety director. At that meeting, they requested the name, address, and telephone number of a representative of the local office of the Occupational Safety and Health Administration (OSHA). Although the safety director told the men that they “had better stop and think about what they were doing,” he furnished the men with the information they requested. Later that same day, Deemer contacted an official of the regional OSHA office and discussed the guard screen.

The next day, Deemer and Cornwell reported for the night shift at 10:45 p.m. Their foreman, after himself walking on some of the angle-iron frames, directed the two men to perform their usual maintenance duties on a section of the old screen. Claiming that the screen was unsafe, they refused to carry out this directive. The foreman then sent them to the personnel office, where they were ordered to punch out without working or being paid for the remaining six hours of the shift. The two men subsequently received written reprimands, which were placed in their employment files.

A little over a month later, the Secretary filed suit in the United States District Court for the Northern District of Ohio, alleging that the petitioner’s actions against Deemer and Cornwell constituted discrimination in violation of § 11(c)(1) of the Act. As relief, the complaint prayed, inter alia, that the petitioner be ordered to expunge from its personnel files all references to the reprimands issued to the two employees, and for a permanent injunction requiring the petitioner to compensate the two employees for the six hours of pay they had lost by reason of their disciplinary suspensions.

Following a bench trial, the District Court found that the regulation in question justified Deemer’s and Cornwell’s refusals to obey their foreman’s order on July 10, 1974. The court found that the two employees had “refused to perform the cleaning operation because of a genuine fear of death or serious bodily harm,” that the danger presented had been “real and not something which had existed only in the minds of the employees,” that the employees had acted in good faith, and that no reasonable alternative had realistically been open to them other than to refuse to work. The District Court nevertheless denied relief, holding that the Secretary’s regulation was inconsistent with the Act and therefore invalid.

The Court of Appeals for the Sixth Circuit reversed the District Court’s judgment. Finding ample support in the record for the District Court’s factual determination that the actions of Deemer and Cornwell had been justified under the Secretary’s regulation, the appellate court disagreed with the District Court’s conclusion that the regulation is invalid. It accordingly remanded the case to the District Court for further proceedings. We granted certiorari, because the decision of the Court of Appeals in this case conflicts with those of two other Courts of Appeals on the important question in issue. That question, as stated at the outset of this opinion, is whether the Secretary’s regulation authorizing employee “self-help” in some circumstances, [29 CFR § 1977.12(b)(2), is permissible under the Act.

II

The Act itself creates an express mechanism for protecting workers from employment conditions believed to pose an emergent threat of death or serious injury. Upon receipt of an employee inspection request stating reasonable grounds to believe that an imminent danger is present in a workplace, OSHA must conduct an inspection. 29 U.S.C. § 657(f)(1). In the event this inspection reveals workplace conditions or practices that “could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by” the Act, 29 U.S.C. § 662(a), the OSHA inspector must inform the affected employees and the employer of the danger and notify them that he is recommending to the Secretary that injunctive relief be sought. § 662(c). At this juncture, the Secretary can petition a federal court to restrain the conditions or practices giving rise to the imminent danger. By means of a temporary restraining order or preliminary injunction, the court may then require the employer to avoid, correct, or remove the danger or to prohibit employees from working in the area. § 662(a).

To ensure that this process functions effectively, the Act expressly accords to every employee several rights, the exercise of which may not subject him to discharge or discrimination. An employee is given the right to inform OSHA of an imminently dangerous workplace condition or practice and request that OSHA inspect that condition or practice. 29 U.S.C. § 657(f)(1). He is given a limited right to assist the OSHA inspector in inspecting the workplace, §§ 657(a)(2), (e), and (f)(2), and the right to aid a court in determining whether or not a risk of imminent danger in fact exists. See § 660(c)(1). Finally, an affected employee is given the right to bring an action to compel the Secretary to seek injunctive relief if he believes the Secretary has wrongfully declined to do so. § 662(d).

In the light of this detailed statutory scheme, the Secretary is obviously correct when he acknowledges in his regulation that, “as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace.” By providing for prompt notice to the employer of an inspector’s intention to seek an injunction against an imminently dangerous condition, the legislation obviously contemplates that the employer will normally respond by voluntarily and speedily eliminating the danger. And in the few instances where this does not occur, the legislative provisions authorizing prompt judicial action are designed to give employees full protection in most situations from the risk of injury or death resulting from an imminently dangerous condition at the worksite.

As this case illustrates, however, circumstances may sometimes exist in which the employee justifiably believes that the express statutory arrangement does not sufficiently protect him from death or serious injury. Such circumstances will probably not often occur, but such a situation may arise when (1) the employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe that there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger.

Nothing in the Act suggests that those few employees who have to face this dilemma must rely exclusively on the remedies expressly set forth in the Act at the risk of their own safety. But nothing in the Act explicitly provides otherwise. Against this background of legislative silence, the Secretary has exercised his rulemaking power under 29 U.S.C. § 657(g)(2) and has determined that, when an employee in good faith finds himself in such a predicament, he may refuse to expose himself to the dangerous condition, without being subjected to “subsequent discrimination” by the employer.

The question before us is whether this interpretative regulation constitutes a permissible gloss on the Act by the Secretary, in light of the Act’s language, structure, and legislative history. Our inquiry is informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act.

LEVINSON, Judge.

Defendants (Olsten Corporation and ITT Specialty Risk Services, Inc.) appeal from a divided opinion of the Industrial Commission, awarding plaintiff (Alice McGrady) medical benefits and temporary total disability. We affirm.

The factual background of this appeal is summarized as follows: Plaintiff was fifty years old at the time of the hearing and had an eighth grade education. In 1994, she completed the course required for certification as a certified nursing assistant (CNA), and was employed by defendant as a CNA. As a CNA, plaintiff provided in-home care for patients requiring assistance with daily living. In July, 1999, plaintiff’s only client was Ms. Withers, an elderly woman with limited physical abilities. Plaintiff assisted Ms. Withers with bathing, dressing, personal care, housekeeping, and meal preparation. In addition, plaintiff drove Ms. Withers to various places in the community and did her grocery shopping. Ms. Withers enjoyed fresh fruit, which plaintiff obtained for her from the local farmers market or at a grocery store.

Plaintiff’s regular hours were from 6:00 a.m. until 3:30 p.m. On 26 July 1999 plaintiff arrived at her usual time and assisted Ms. Withers with breakfast. During breakfast, Ms. Withers asked plaintiff to take her dog “Footsie” out to the yard. Plaintiff testified she “usually took her out … sometimes twice a day.” While plaintiff was outside with Footsie, she noticed that Ms. Withers’ pear tree had borne a pear. She had previously obtained fruit from Ms. Withers’ peach tree without incident and decided to retrieve the pear for her and Ms. Withers to share. Plaintiff began to climb the tree; however, she soon realized that the pear was too high up for her to shake it out of the tree, so she started back down. As plaintiff was climbing back to the ground, she fell. Plaintiff was taken by ambulance to a hospital, where physicians determined that she had broken her back, suffering “50 percent compression fracture” of her spine, and resulting in “quite a bit of damage to the vertebral body.” She was initially treated with pain medication and bed rest, until further examination revealed that plaintiff had both an “acute compression fracture” and a “burst fracture” of the spine. Accordingly, plaintiff’s treating physician performed surgery on her vertebrae and implanted steel rods in her back. Despite the surgery, plaintiff continued to experience pain, and her physician testified at the hearing that it was unlikely that plaintiff could ever return to work, “even light duty.” He also testified that plaintiff’s injuries were caused by the fall from Ms. Withers’ pear tree.

On 9 September 1999, plaintiff filed a claim for workers’ compensation, which was denied by defendants on the basis that her injuries were not causally connected to her employment. A hearing was conducted before Deputy Commissioner Wanda Taylor on 17 April 2000, and on 5 October 2000 the deputy commissioner issued an opinion denying plaintiff’s claim for workers’ compensation. The opinion concluded that, although plaintiff’s accident had proximately caused her injuries, the fall itself “was not an activity which a person so employed might reasonably do in employment such as plaintiff’s.” Plaintiff appealed to the Full Commission, which conducted a review of the record on 7 January 2002. On 18 April 2002, the Industrial Commission issued an opinion reversing the deputy commissioner and awarding plaintiff medical compensation and temporary total disability. The opinion concluded that plaintiff’s attempt to get a pear from Ms. Withers’ pear tree either was “within plaintiff’s work duties” or was not a serious deviation from her job duties, and thus that plaintiff’s injuries were compensable. One commissioner dissented on the basis that “climbing a pear tree was not a contemplated action of plaintiff’s employment” and thus that there was “no causal relationship between plaintiff’s injuries and … her employment as an in-home caregiver.” From this opinion and award, defendants appealed.

Standard of Review

“The standard of appellate review of an opinion and award of the Industrial Commission in a workers’ compensation case is whether there is any competent evidence in the record to support the Commission’s findings of fact and whether these findings support the Commission’s conclusions of law.” Further, the Industrial Commission’s findings of fact “are conclusive on appeal if supported by any competent evidence.” “Thus, on appeal, this Court ‘does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.’” “Even where there is competent evidence to the contrary, we must defer to the findings of the Commission where supported by any competent evidence. The Commission’s findings of fact may only be set aside when ‘there is a complete lack of competent evidence to support them.’” The Commission’s conclusions of law, however, are reviewed de novo.

Defendants argue on appeal that the Industrial Commission erred by finding that plaintiff suffered a compensable injury. Under N.C.G.S. § 97-2(6) (2001) a compensable injury “means only injury by accident arising out of and in the course of the employment.” In the present case, there is no dispute that plaintiff’s injuries were caused by an accident. However, defendants contend that plaintiff’s injury did not arise “out of and in the course of” her employment.

“Whether an injury arises out of and in the course of a claimant’s employment is a mixed question of fact and law, and our review is thus limited to whether the findings and conclusions are supported by the evidence.” “The phrase ‘arising out of’ refers to the requirement that there be some causal connection between the injury and claimant’s employment. ‘In the course of’ refers to the time and place constraints on the injury; the injury must occur during the period of employment at a place where an employee’s duties are calculated to take him.” Thus, “where the evidence shows that the injury occurred during the hours of employment, at the place of employment, and while the claimant was actually in the performance of the duties of the employment, the injury is in the course of the employment.” “In other words, to be compensable, the injury must spring from the employment or have its origin therein.” The burden of proof is upon the claimant who “must establish both the ‘arising out of’ and ‘in the course of’ requirements to be entitled to compensation.” Moreover:

while the ‘arising out of’ and ‘in the course of’ elements are distinct tests, they are interrelated and cannot be applied entirely independently. Both are part of a single test of work-connection. Because the terms of the Act should be liberally construed in favor of compensation, deficiencies in one factor are sometimes allowed to be made up by strength in the other.

In the instant case, the Industrial Commission’s findings of fact included, in relevant part, the following:

In August 1994, plaintiff became employed with defendant-employer as an in-home caregiver. As a caregiver, plaintiff had a variety of job duties relating to the care of clients. Plaintiff also was required to make meals for clients for breakfast, lunch and dinner as well as snacks, perform household chores such as cleaning and laundering, as well as transporting the client and grocery shopping if requested.

While working for defendant-employer plaintiff was assigned as a caregiver in the home of Ms. Nancy Withers.

On July 26, 1999, after assisting Ms. Withers out of bed and preparing her breakfast, plaintiff took Ms. Withers’ dog outside and, while outside in the yard, plaintiff decided to pick a pear from the pear tree for herself and Ms. Withers. Plaintiff climbed into the tree to retrieve a pear and, as she was coming down, she fell from the tree.

Plaintiff regularly served fruit to Ms. Withers as a part of her job.

As an employee for defendant-employer, plaintiff was to provide services pursuant to a plan of care which authorized plaintiff to fix meals for Ms. Withers and to go grocery shopping.

Plaintiff’s activities in obtaining and preparing food for Ms. Withers were in the course and scope of her employment with defendant-employer. The taking of the pear was thereby consistent with plaintiff’s duties to acquire and prepare food for Ms. Withers.

Because defendants do not assign as error any of the Industrial Commission’s findings of fact, they are “conclusively established on appeal.”

We next determine whether the Industrial Commission correctly applied the law to these facts when it reached the following conclusion: “On July 26, 1999, plaintiff sustained a compensable injury by accident arising out of and in the course of her employment with defendant-employer when she fell from a pear tree while picking a pear for the consumption of her employer’s patient.”

Defendants argue that plaintiff’s injury is not compensable. They contend that, because plaintiff was not authorized to climb a tree in order to obtain a pear for Ms. Withers, plaintiff’s injury did not result from “a risk which might have been contemplated by a reasonable person familiar with the whole situation as incidental to the service when he entered the employment.” Bartlett v. Duke University, 284 N.C. 230 (1973) (denying compensation to claimant who aspirated food while dining out during a business trip). Defendants frame the issue of compensability primarily in terms of whether plaintiff was authorized to obtain a pear by climbing a tree, which defendants term “the critical issue in this case.”

However, a review of relevant appellate law indicates that a plaintiff’s entitlement to workers’ compensation generally is not defeated by his negligence, or by evidence that at the time of injury the plaintiff was engaged in a foolish, even forbidden, activity:

The Workers’ Compensation Act is a compromise. Nothing in it supports the notion that it was enacted just for the protection of careful, prudent employees, or that employees that do not stick strictly to their business are beyond its protection. It is not required that the employment be the sole proximate cause of the injury, it being enough that ‘any reasonable relationship to the employment exists, or employment is a contributory cause.’

Bare v. Wayne Poultry Co., 70 N.C.App. 88 (1984)(plaintiff suffers compensable injury “participating in horseplay” with deboning knife). See also, e.g., the following cases allowing compensation: Hoyle v. Isenhour Brick and Tile Co., 306 N.C. 248 (1982) (compensation not barred by actions that violate employer’s rules unless undertaken in “disobedience of a direct and specific order by a then present superior”); Watkins v. City of Wilmington, 290 N.C. 276 (1976) (injury compensable if “competent proof exists that the employee understood, or had reasonable grounds to believe that the act resulting in injury was incidental to his employment”) (citation omitted); Stubblefield v. Construction Co., 277 N.C. 444 (1970) (plaintiff suffered fatal accident while idly knocking dust and debris from conveyor rollers, actions which “had no relation to his duties”); Choate v. Sara Lee Products, 133 N.C.App. 14 (1999) (plaintiff injured in parking lot after she left production line in violation of company rules); Spratt v. Duke Power Co., 65 N.C.App. 457 (1983) (claimant injured while running to vending machine in violation of company rules); Patterson v. Gaston Co., 62 N.C.App. 544 (1983) (“negligence does not necessarily bar the award of compensation”). As explained by this Court:

An appellate court is justified in upholding a compensation award if the accident is ‘fairly traceable to the employment as a contributing cause’ or if ‘any reasonable relationship to employment exists.’ Compensability of a claim basically turns upon whether or not the employee was acting for the benefit of his employer ‘to any appreciable extent’ when the accident occurred. In close cases, the benefit of the doubt concerning this issue should be given to the employee in accordance with the established policy of liberal construction and application of the Workers’ Compensation Act.

We conclude that the Industrial Commission’s findings of fact easily establish that plaintiff’s accident arose “in the course of” her employment. We further conclude that these findings of fact sufficiently support its conclusion that plaintiff’s injury arose “out of” her employment. We note that the Commission’s findings specifically state that plaintiff (1) “was required to make meals as well as snacks”; (2) “regularly served fruit to Ms. Withers as a part of her job”; (3) “took Ms. Withers’ dog outside and decided to pick a pear for herself and Ms. Withers”; and (4) that plaintiff’s “activities in obtaining food for Ms. Withers were in the course and scope of her employment with defendant-employer.”

Defendants’ arguments are not without force. However, bearing in mind that we are bound by the Industrial Commission’s findings of fact, we are constrained to conclude that plaintiff suffered a compensable injury.

HUNTER, Judge.

Robert Deem (“plaintiff”) appeals the trial court’s grant of defendants’ motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). We agree with the trial court that the North Carolina Industrial Commission (“Industrial Commission”) has exclusive jurisdiction over plaintiff’s claims. Thus, we affirm.

The facts pertinent to this case are as follows: On 26 July 1993, plaintiff was an employee of defendant Treadaway & Sons Painting (“Treadaway Painting”) when he fell off a ladder and suffered a compensable injury. With the assistance of an attorney, plaintiff filed a workers’ compensation claim with the Industrial Commission against his employer, Treadaway Painting and its workers’ compensation carrier, defendant Montgomery Mutual Insurance Company (“Montgomery Mutual”). Montgomery Mutual hired an independent adjusting company, defendant R.E. Pratt & Co. (“Pratt”), to handle plaintiff’s workers’ compensation claim. Defendant Goad was Pratt’s adjuster assigned to plaintiff’s claim.

Plaintiff returned to work in November 1994 as a paint foreman. Later, his condition worsened and he was taken out of work on 3 January 1996. About the same time, Montgomery Mutual and Pratt hired defendant Concentra Managed Care (“Concentra”) “to provide vocational rehabilitation counseling for the Plaintiff.” Defendants Smith, Wertz and Seltzer were employees of Concentra. On 20 February 1996, plaintiff was released to work by his attending physician, however the release was based upon a number of restrictions. When Concentra notified Treadaway Painting that plaintiff could return to work with restrictions, Concentra was informed that plaintiff’s job was no longer vacant. However, Treadaway Painting offered the job of laborer to plaintiff, which plaintiff accepted.

On 11 July 1997 plaintiff, through counsel, entered into an “Agreement of Final Settlement and Release” with Treadaway Painting, Montgomery Mutual and Pratt.

Pursuant to this agreement, the plaintiff and his attorney Seth N. Bernanke agreed to release and discharge all claims available under the North Carolina Worker’s Compensation Act relating to this injury in exchange for payment of $100,000. On July 23, 1997 the Industrial Commission entered an order approving the compromise settlement agreement reached by the plaintiff and Treadaway, Montgomery Mutual and R.E. Pratt & Co. in the amount of $100,000.

Notwithstanding the former release and settlement agreement, on 31 December 1998, plaintiff filed this suit against Treadaway Painting, Montgomery Mutual, Pratt, Goad, Concentra and Concentra’s three employees, alleging that defendants committed fraud, bad faith, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy arising out of the handling of his workers’ compensation claim.

In response to plaintiff’s complaint, each defendant filed a motion to dismiss pursuant to Rule 12(b)(1), specifically stating that North Carolina’s general courts of justice are without subject matter jurisdiction due to the Industrial Commission having exclusive jurisdiction, and; pursuant to Rule 12(b)(6), specifically stating that the plaintiff had failed to state a claim for which relief may be granted. The trial court agreed with defendants and granted each of their motions to dismiss based upon both Rules 12(b)(1) and (6). On appeal, plaintiff brings forward three assignments of error, all dealing with the trial court’s grant of each defendant’s motion to dismiss. Finding the record before us clear and case law plain, we affirm the trial court’s rulings.

In Johnson v. First Union Corp., plaintiffs Johnson and Smith each “filed claims with the North Carolina Industrial Commission seeking workers’ compensation benefits for repetitive motion disorders they allegedly suffered in the course of their employment. However, both subsequently had their claims rejected.” Like the plaintiff in this case, plaintiffs Johnson and Smith later filed suit in superior court against their employer, its workers’ compensation carrier, the adjusting company and the rehabilitation provider along with one of its employees, alleging: fraud, bad faith, refusal to pay or settle a valid claim, unfair and deceptive trade practices, intentional infliction of emotional distress and civil conspiracy. Although the trial court dismissed plaintiffs’ case stating that plaintiffs had failed to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), on appeal defendants argued—and this Court agreed—that the claims should have been dismissed pursuant to Rule 12(b)(1) because the Industrial Commission had exclusive jurisdiction.

In enacting the North Carolina Workers’ Compensation Act (“the Act”), our General Assembly set clear boundaries for how an employee injured on the job must seek remedy. Additionally, although the Legislature has amended parts of the Act over time, the main thrust of the Act and its purpose have remained the same:

… to provide compensation for an employee in this State who has suffered an injury by accident which arose out of and in the course of his employment, the compensation to be paid by the employer, in accordance with the provisions of the act, without regard to whether the accident and resulting injury was caused by the negligence of the employer, as theretofore defined by the law of this State.

We note here that, North Carolina is a contributory negligence state. Thus, to gain any remedy before the Act was enacted, an employee injured on the job would be subject to proving not only that the employer was negligent but that she herself was not negligent at all. Instead, under the Act:

The right of the employee to compensation, and the liability of the employer therefore, are founded upon mutual concessions, as provided in the Act, by which each surrenders rights and waives remedies which he theretofore had under the law of this State.

Thus, although there is a trade-off of rights, our Supreme Court has held that “the act establishes a sound public policy, and is just to both employer and employee.”

Nevertheless, plaintiff at bar argues that it matters not that his claims originally arose out of his compensable injury. Instead, he argues that the “intentional conduct” of defendants fails to come under the exclusivity provisions of the Act because that conduct did not arise out of and in the course of plaintiff’s employment relationship. Again, finding Johnson on point, we disagree.

From both his complaint and his brief to this Court, we can clearly glean that plaintiff’s cause of action arises out of his belief that “defendants engaged in fraudulent, illegal, and improper conduct designed at forcing plaintiff back into the job market at a made up job so that the defendants could artificially cut off plaintiff’s right to benefits under the Workers’ Compensation Act.” (Emphasis added.) Therefore, plaintiff’s complaint is nothing more than an allegation that defendants did not appropriately handle his workers’ compensation claim, and thus he was injured because he did not receive his entitled benefit. This is the exact argument of the Johnson plaintiffs and, in that case, this Court held that “the North Carolina Workers’ Compensation Act gives the North Carolina Industrial Commission exclusive jurisdiction over workers’ compensation claims and all related matters, including issues such as those raised in the case at bar.” Noting that the Johnson plaintiffs also alleged the defendant committed intentional torts against them (including unfair and deceptive trade practices), we hold in the case at bar that plaintiff’s claims are ancillary to his original compensable injury and thus, are absolutely covered under the Act and this collateral attack is improper.

However, plaintiff further argues that his current claims should be allowed in the general court of justice because they are claims of “intentional conduct.” Thus, plaintiff contends that as such, the “actions fall within the North Carolina Supreme Court’s exception of intentional conduct from the exclusivity rule” as set out in Woodson v. Rowland. Again, we disagree.

It is well established that the “substantially certain” standard set out in Woodson creates an exception to the exclusivity provision of the Act. However, it is also well established that the exception is extremely narrow in that plaintiff’s “forecast of evidence” must show the “employer intentionally engaged in the misconduct complained of knowing it was substantially certain to cause serious injury or death to the employee and the employee was injured or killed by that misconduct.” Since plaintiff does not contend, neither is there evidence of record to support a finding that defendants’ actions were “substantially certain to cause serious injury or death” to plaintiff, plaintiff’s claims do not rise to the level of a Woodson claim. Thus, the trial court’s dismissal of plaintiff’s claims for lack of subject matter jurisdiction is affirmed, as the Industrial Commission has sole jurisdiction over all the issues raised. We specifically note that the Industrial Commission has the exclusive jurisdiction over workers’ compensation agreements and employee claims of fraud, misrepresentation, undue influence, mutual mistake, intentional infliction of emotional distress, and unfair and deceptive trade practices with respect to those agreements. Our Supreme Court has long held that:

“If a plaintiff desires to attack a workers’ compensation agreement for fraud, misrepresentation, undue influence, or mutual mistake, and has evidence to support such an attack, he may make application in due time for a further hearing for that purpose. In such event, the Industrial Commission shall hear the evidence offered by the parties, find the facts with respect thereto, and upon such findings determine whether the agreement was erroneously executed due to fraud, misrepresentation, undue influence or mutual mistake. If such error is found, the Commission may set aside the agreement, and determine whether a further award is justified and, if so, the amount thereof.”

Thus, plaintiff’s sole remedy in this case was to petition the Industrial Commission to set aside his agreement with Treadaway Painting. We recognize plaintiff is contending that this remedy is insufficient. However, we believe our General Assembly is the correct body to consider changes to our current workers’ compensation remedies.

Having held that the trial court properly dismissed plaintiff’s claims for lack of subject matter jurisdiction, we need not address the issue of whether plaintiff’s claims were properly dismissed pursuant to N.C. Gen.Stat. § 1-1A, Rule 12(b)(6).