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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 1 of 12

Michael Zoldan; AZ Bar No. 028128

Jessica Miller; AZ Bar No. 031005

ZOLDAN LAW GROUP, PLLC

14500 N. Northsight Blvd., Suite 213

Scottsdale, AZ 85260

Tel & Fax: 480.442.3410

mzoldan@zoldangroup.com

jmiller@zoldangroup.com

Attorneys for Plaintiff

Kimberley Johnston

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Kimberley Johnston, an Arizona 

resident,

Plaintiff,

v.

Fender Musical Instruments 

Corporation, a Delaware Corporation,

Defendant.

Case No. 

VERIFIED COMPLAINT

(Jury Trial Requested)

Plaintiff Kimberley Johnston (“Johnston”), for her Verified Complaint against 

Defendant Fender Musical Instruments Corporation (“Fender”), hereby alleges as follows:

PARTIES

1. Plaintiff is, and at all times relevant hereto was, a resident of Maricopa 

County, Arizona. At all times relevant to this lawsuit, Johnston was an “employee” of

Fender as defined in the Americans with Disabilities Act and the Americans with 

Disabilities Act Amendments Act, 42 U.S.C.A. § 12101, et seq. (collectively referred to 

herein as the “ADA”). 

2. Upon information and belief, Fender is authorized to conduct business and is 

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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 2 of 12

currently doing business in the State of Arizona. At all times relevant hereto, Fender was 

Johnston’s “employer” as defined in the ADA.

JURISDICTION AND VENUE

3. All acts complained herein occurred in Maricopa County, Arizona, and this 

Court has jurisdiction over the parties and subject matter set forth in this Complaint 

pursuant to the ADA. 

4. This Court has federal question subject matter jurisdiction over Plaintiff’s 

claims pursuant to 28 U.S.C. § 1331 in that the claims set forth in this Complaint arise 

under federal law. 

5. The employment practices alleged to be unlawful were committed within, 

and had their primary effect in, the jurisdiction of the United States District Court for the 

District of Arizona.

6. Plaintiff has exhausted all administrative and statutory prerequisites 

necessary to commence this action, and therefore jurisdiction is proper.

7. Personal jurisdiction in this Court is proper.

8. Venue in this Court is proper.

FACTUAL ALLEGATIONS

9. Johnston commenced employment with Fender in 2007 as a Collection

Specialist, working most recently as an Accounts Payable Specialist.

10. Johnston consistently met and exceeded expectations on annual performance 

reviews. 

11. In July of 2010, Johnston sustained a traumatic head injury causing three 

fractures in her skull and several broken ribs. She required approximately three months of 

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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 3 of 12

medical leave for physical therapy before she could return to work. 

12. Aside from the medical leave, Johnston did not request additional 

accommodations in 2010 and could perform the essential functions of her position without 

an accommodation.

13. Beginning in 2016, Johnston started experiencing intense migraines and 

sought treatment from a neurologist.

14. After an MRI test, it was discovered that Johnston’s fractures were widening.

15. Johnston’s migraines were attributed to the fact that her skull fractures were 

widening. 

16. When Johnston is suffering from a migraine headache, she requires medical 

leave as an accommodation. 

17. The lasting consequences of Johnston’s injury also cause various mental 

impairments that affect Johnston’s ability to think, concentrate, communicate, recall 

information, learn, and read.

18. Johnston also began to suffer from brief periods of confusion and memory 

loss, which were also attributed to the fact that her skull fractures were widening.

19. The periods of confusion and memory loss are symptoms caused by her brain 

injury.

20. Early in 2016, Johnston informed her supervisor, Finance Manager Michelle 

Sease, that she was experiencing migraine headaches and periods of confusion due to her 

injury. 

21. Johnston also informed Sease that she needed assistance during periods of 

confusion if Johnston could not remember specific protocols related to marginal functions 

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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 4 of 12

of her job.

22. Nonetheless, and despite the symptoms of her disability, neither Sease nor 

anyone else at Fender communicated that Johnston was exhibiting poor work performance 

at that time.

23. Johnston requested accommodations in this manner monthly in meetings 

with Sease. 

24. On each occasion, Sease would promise to modify Johnston’s work 

expectations because Johnston has a disability.

25. Sease did not modify Johnston’s work expectations, did not provide her with 

assistance during periods of confusion, did not report her accommodation request to human 

resources personnel, and did not inform Johnston that she was eligible for intermittent 

FMLA leave.

26. For the first nine months of 2016, Sease took no action at all in response to 

Johnston’s accommodation requests.

27. On at least one occasion, Sease told Johnston that she cannot use her 

disability as an excuse for needing help or completing tasks.

28. After attending approximately nine monthly meetings and requesting 

accommodations without any meaningful response by Sease, Johnston complained to Tony 

Gianforte, Defendant’s Controller.

29. On or about October 8, 2016, Johnston informed Gianforte that she had a 

disability and that Sease refused to assist her with any accommodations.

30. Gianforte promised to inform human resources personnel that Johnston was 

in need of accommodations.

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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 5 of 12

31. Only one week later, Johnston was issued unprecedented corrective action 

by Sease.

32. Johnston had not been previously disciplined throughout her ten years of 

employment with Fender.

33. Sease claimed Johnston had too many errors on entries of invoices. 

34. At that time, there was no objective method to evaluate error rate in the 

Finance Department. 

35. Three months later, in January 2017, that the Finance Department imposed 

five new performance guidelines that measured percentage of errors, among other metrics.

36. The Department would audit ten percent of invoices sent weekly by each 

account specialist to review for errors in an “Error Report.”

37. In March 2017, Johnston was audited. Johnston’s supervisor, Senior 

Accounts Payable Specialist Brandi Strombeck, indicated that Johnston had failed her 

audit. 

38. Strombeck identified errors in Johnston’s invoices that occurred prior to 

December 2016—before the Error Report method was even imposed.

39. Strombeck insisted that she had discretion to determine whatever 

performance metrics she believed appropriate, even if they deviated from the written 

performance metrics.

40. Because she believed that she was being discriminated against, Johnston 

informed Strombeck that she intended to record all personnel meetings and was given

permission to do so by Strombeck.

41. On April 27, 2017, Johnston complained to Fender’s human resources 

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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 6 of 12

personnel, Margie Cashdan, that similarly-situated comparators were not disciplined for 

errors on important invoices, but that she was being harshly reprimanded for little or no 

reason at all. 

42. Johnston also complained that Strombeck was overly scrutinizing her work 

performance.

43. Cashdan simply instructed Johnston to resolve the issues with Strombeck 

herself.

44. Only weeks later, Strombeck once again attempted to discipline Johnston 

claiming that there were errors in Johnstons’ work product.

45. Instead of conducting a standard Error Report, Strombeck reviewed 

Johnston’s entire work history and pulled invoices that contained inconsequential errors, 

some of which were up to six months old. 

46. Strombeck scored Johnston at 86%, which included errors from six months 

earlier.

47. Johnston once again complained to Cashdan that the disciplinary action was 

not being evenly enforced and that she was being singled out.

48. Cashdan agreed that the write-up was not appropriate and modified 

Johnston’s score to a satisfactory score of 90% accuracy, effectively invalidating the 

proposed disciplinary action.

49. Strombeck insisted that Johnston should be held to a 95% accuracy rate 

despite admitting that nobody else in the Finance Department was expected to maintain

that accuracy rate.

50. Strombeck imposed a final written warning against Johnston only four days 

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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 7 of 12

later, on or about June 2, 2017.

51. Strombeck admitted that Johnston’s May weekly audit revealed 0% errors, 

but insisted that other mistakes discovered from November and January merited a final 

written warning.

52. During this same meeting, Strombeck and Cashdan offered Johnston 

$5,000.00 to resign.

53. Instead of resigning, Johnston requested FMLA leave due to stress caused by 

her continued harassment, which triggers symptoms of her disability such as migraines and 

psychological distress.

54. Johnston also submitted a comprehensive complaint to Fender Human 

Resources unambiguously complaining of disability discrimination and retaliation.

55. Johnston’s physician determined that she needed medical leave until 

September 18, 2017. 

56. Johnston complied with all directives to submit medical documentation and 

signed a release for Fender to speak directly to her treating physician.

57. Johnston exhausted FMLA leave. 

58. Five days before the expiration of her medical leave, on or about September 

13, 2017, Johnston submitted medical documentation requesting to extend her medical 

leave until October 16, 2017.

59. Fender indicated that the note was insufficient to merit an extension of her 

medical leave and instructed Johnston to contact Jacquelyn Kreuger, Senior HR Business 

Partner by September 22, 2017.

60. As directed, Johnston contacted Kreuger in order to discuss her continuing 

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ZOLDAN LAW GROUP, P

L

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C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 8 of 12

need for medical leave and eventual return to work in October.

61. Kreuger acknowledged that Johnston’s doctor’s note stated that she could 

return to work on October 16, 2017.

62. Nonetheless, Kreuger requested additional medical documentation 

indicating the “probability” that Johnston would actually be able to return to work on 

October 16, 2017.

63. Despite the excessive nature of the request, Johnston agreed to provide the 

additional medical documentation requested.

64. During the phone call, Johnston repeatedly insisted that she could perform 

the essential functions of her job position with or without an accommodation as she had 

been doing in a satisfactory manner for ten years.

65. Johnston indicated that she would need periodic sick days when she returned 

due to her migraines. 

66. Johnston also complained about the discriminatory treatment she received 

from her supervisors. 

67. On or about September 27, 2017, Fender denied the extension of Johnston’s 

requested medical leave, and claimed that “there is not an appropriate accommodation that 

would allow [her] to perform the necessary job duties....”

68. Fender neglected to identify any essential functions that Johnston could not 

perform.

69. Fender also did not claim that providing an additional 19 days of leave would 

amount to undue burden.

70. In response to Fender’s September 27, 2017 letter, Johnston requested 

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ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 9 of 12

reassignment to a vacant position as an accommodation. 

71. Fender responded with a termination letter on October 10, 2017.

COUNT I

DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT

72. Plaintiff reasserts and realleges each and every allegation in this complaint 

as if fully set forth herein.

73. The ADA prohibits discrimination against a qualified individual with a 

disability in regard to terms, conditions and privileges of employment. 42 U.S.C. § 

12112(a). 

74. Plaintiff has a physical or mental impairment that substantially limits a major 

life activity. 

75. In the alternative, the length of time during which Plaintiff has experienced 

symptoms, and for which she will continue to suffer from, constitutes a record of 

impairment.

76. In the alternative, Plaintiff was regarded as having a disability under the 

ADA. 

77. Defendant is an employer under the ADA.

78. Defendant knew of Plaintiff’s physical and mental limitations.

79. Defendant treated Plaintiff disparately as compared to other similar situated 

non-disabled employees because of her disability. 

80. Plaintiff is qualified to perform the essential functions of her position.

81. Defendant failed to accommodate Plaintiff. 

82. Defendant requested excessive medical documentation.

83. Defendant failed to engage in the interactive process in good faith.

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ZOLDAN LAW GROUP, P

L

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C

14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 10 of 12

84. Defendant discriminated and retaliated against Plaintiff by failing to provide 

her with reasonable accommodations, failing to engage in the interactive process in good 

faith, and terminated her due to her disabilities. See 42 U.S.C. § 12112(b). 

85. Accommodating Plaintiff’s reasonable requests would not inflict undue 

hardship on Defendant.

86. Plaintiff’s reasonable requests would not pose a direct threat to the health or 

safety of other individuals in the workplace.

87. Plaintiff’s disability was the but-for cause of Defendant’s discriminatory 

conduct.

88. As a direct, intentional, and willful consequence of such illegal conduct, 

Plaintiff suffered adverse employment actions including, inter alia, termination of 

employment. 

89. As a result, Plaintiff has been damaged in an amount to be proven at trial.

COUNT II

RETALIATION IN VIOLATION OF THE AMERICANS WITH DISABILITIES 

ACT

90. Plaintiff reasserts and realleges each and every allegation in this complaint 

as if fully set forth herein.

91. The ADA prohibits discrimination against any individual because such 

individual engaged in protected activity under the ADA. See 42 U.S.C. § 12203(a).

92. Plaintiff engaged in protected activity by requesting reasonable 

accommodations under the ADA and by complaining of disability discrimination on 

multiple occasions.

93. Defendant retaliated against Plaintiff by failing to provide her with 

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ZOLDAN LAW GROUP, P

L

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14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 11 of 12

reasonable accommodations and terminated her due to her complaints.

94. Plaintiff’s complaints was the but-for cause of Defendant’s retaliatory 

conduct.

95. As a direct, intentional, and willful consequence of such illegal conduct, 

Plaintiff suffered adverse employment actions including, inter alia, termination of 

employment. 

96. As a result, Plaintiff has been damaged in an amount to be proven at trial.

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendant Fender, as follows:

A. An award of damages for all counts in an amount to be proven at trial; 

B. An award of compensatory and punitive damages in an amount to be proven 

at trial;

C. An award of back pay and front pay;

D. Pre- and post-judgment interest;

E. Reasonable attorneys’ fees, costs and other expenses;

F. Any other remedies or judgments deemed just and equitable by this Court.

JURY DEMAND

Plaintiff hereby demands a trial by jury of all issues so triable.

RESPECTFULLY SUBMITTED January 9, 2018.

ZOLDAN LAW GROUP, PLLC

By: /s/ Jessica Miller

14500 N. Northsight Blvd., Suite 213

Scottsdale, AZ 85260

Attorneys for Plaintiff Kimberley Johnston

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ZOLDAN LAW GROUP, P

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14500 N. Northsight Blvd., Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan

@zoldangroup.com

Page 12 of 12

VERIFICATION

Plaintiff Kimberley Johnston declares under penalty of perjury that she has read 

the foregoing Verified Complaint and is familiar with the contents thereof. The matters 

asserted therein are true and based on her personal knowledge, except as to those matters 

stated upon information and belief, and as to those matters, she believes them to be true.

Kimberley Johnston

Case 2:18-cv-00089-DLR Document 1 Filed 01/09/18 Page 12 of 12