Reference no: EM133636921

Susan Russo graduated from college with a degree in communications in June 2019. Shortly after graduating and before looking for employment, she was in a serious car accident. Although she otherwise fully recovered, she lost the effective use of her legs and relies on a wheelchair to get around. In early January 2020, she sent a letter and résumé in response to a job ad for a receptionist posted on Monster.com by Toned, a "health spa." She received a phone call scheduling an interview, and on January 15, 2020, went to the spa to meet with the personnel direc- tor. The director seemed awkward during the interview, which Susan attributed to her being in a wheelchair. The interviewended with the director telling Susan that there were "many applicants for this job, but we'll get back to you." Yet Susan heard nothing furtheruntil December 15, 2020, when she received a form letter thanking her for her interest in Toned, but informing her that "your interests and ours do not coincide at this time."

In the meantime, however, Susan noticed that the job ad to which she had responded continued to be posted on Monster.com, last appearing onFebruary 13, 2020. Susan was upset about this but did not want to be "paranoid." On March 15, she discovered that one of her friends was a member of Toned and asked her to "nose around." The friend reported back to Susan on April 15 the following infor- mation: a receptionist was employed who had begun work around April 4. The receptionist had found out about the position through a posting in early February. Toned must know about the Americans with Disabilities Act because there was a poster in the cafeteria listing individuals' rights under the ADA. The cafeteria, how- ever, was upstairs from the business offices (including the office of the personnel director), and there was no elevator or ramp leading to the second floor.

Susan first learned about the ADA from the physical therapist who had worked with her during her recovery from the car accident in late 2019. At that time, however, Susan had not thought much about employment discrimination against individuals with disabilities. In the wake of her turndown from Toned and unable to find another suitable job, Susan joined a support group. Over the next few months, she became more and more upset about what had happened. On August 16, 2020, Susan visited the office of the state fair employment practices agency. The intake officer there told her she could file a charge of discrimination if she wished, but they were overworked, and it would make more sense if she filed with the federal EqualEmployment Opportunity Commission. Susan did not then file a charge with the state agency. On October 17, 2020, she went to the offices of the EEOC, where an investigator completed an intake questionnaire, informed her that "you have a good case," and promised to fill out a charge formfor her signature. On December 16, 2020, not having heard anything further, Susan went to the EEOC office again. The investigator she had first met had, it turned out, been transferred. The new investigator reviewed the intake questionnaire in the file and helped Susan complete a charge, which she signed, and he notarized on that date. She checked Box 2.

Assuming the EEOC does not pursue this matter, may Susan bring a private suit under the ADA? Does 42 U.S.C. §12115 bear on the question?Assume that the state fair employment practices agency in question has jurisdiction over disability claims and that it has a six-month statute of limitations for filing a state charge.

What is the issue? What is the analysis? What is the prima facie case? Employer's response? Employee counterargument? Evidence ?