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ROBAINA & KRESIN PLLC 

5343 North 16th Street, Suite 200 

Phoenix, Arizona 85016-3231 

Telephone: (602) 682-6450 

Facsimile: (602) 682-6455 

dck@robainalaw.com

David C. Kresin (019858) 

Attorneys for Plaintiff 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Mildred Jane Lindner, an individual,

 Plaintiff, 

vs. 

Foundation for Senior Living, an Arizona 

corporation, 

 Defendant. 

No. 

COMPLAINT 

(Jury Trial Demanded) 

Plaintiff Mildred Jane Lindner, by and through her counsel, alleges as follows: 

1. This action is brought pursuant to the Family and Medical Leave Act, 29 

U.S.C. § 2601 et seq. (“the FMLA”), the Americans with Disabilities Act, 42 U.S.C. § 

12101 et seq. (“the ADA”), and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.

(“the Rehab Act”). 

2. Plaintiff Mildred Jane Lindner is a resident of Maricopa County, Arizona. 

3. Defendant Foundation for Senior Living (“the Foundation”) is a private, 

nonprofit agency in Phoenix, Arizona. 

4. The Foundation receives or distributes federal financial assistance through 

Medicare or otherwise. 

5. The Court has jurisdiction over this case pursuant to 29 U.S.C. § 

2617(a)(2) and 28 U.S.C. § 1331. 

6. Venue is proper in the District of Arizona pursuant to 28 U.S.C. § 1391. 

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7. Ms. Lindner is a registered nurse with her Bachelor of Science in Nursing 

degree. 

8. The Foundation employed Ms. Lindner for over 17 years in the position of 

Administrator of the Home Health Agency until approximately December 19, 2017, 

when the Foundation terminated Ms. Lindner’s employment. 

9. In her position as Administrator, Ms. Lindner oversaw a staff of 50 for the 

Foundation. 

10. Ms. Lindner performed her job well and receiving positive feedback for 

her performance throughout her employment until May 2017, when she was diagnosed 

with a disability and began needing leave to accommodate her disability. 

11. Specifically, in May 2017, Ms. Lindner was diagnosed with lupus. 

12. By June 2017, Ms. Lindner sought intermittent leave due to her episodic 

flare ups and the need for treatment of the lupus. Ms. Lindner occasionally used the 

intermittent leave throughout the Summer of 2017. 

13. On Friday, August 11, 2017, Ms. Lindner was taken to the emergency 

room due to diverticulitis, diaphoresis and abdominal pain secondary to the lupus. 

Because of those conditions, Ms. Lindner was temporarily unable to work and 

immediately sought a leave of absence from the Foundation. 

14. While out on medical leave, Ms. Lindner was forced to go to work to meet 

with Human Resources Director Patricia Cordova and Ms. Lindner received calls from 

work almost daily. 

15. Specifically, on Tuesday, August 15, Ms. Cordova called Ms. Lindner and 

told her that Ms. Lindner needed to meet with Ms. Cordova as soon as possible to 

discuss a “business continuity plan” for the agency. When Ms. Lindner resisted due to 

her medical condition, Ms. Cordova insisted that they meet immediately. 

16. Because Ms. Lindner remained very ill and suffering severe diarrhea, Ms. 

Lindner did not want Ms. Cordova coming into her home so Ms. Lindner agreed to meet 

Ms. Cordova at the office the next morning. 

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17. On Wednesday, August 16, Ms. Lindner arrived at 9:30 am to meet with 

Ms. Cordova. At that point, Ms. Lindner learned that Ms. Cordova would not arrive to 

the office until later. Ms. Lindner still felt very ill and made a number of trips to the 

bathroom while she waited for Ms. Cordova. Several other employees saw how sick 

Ms. Lindner was and encouraged her to go home, but she stayed to meet Ms. Cordova as 

directed. 

18. While Ms. Lindner was waiting, Chief Operating Officer Carrie Smith 

walked by and Ms. Lindner asked her about the purpose of the meeting. Ms. Smith 

feigned ignorance, stating she knew nothing about it. 

19. Ms. Cordova ultimately arrived at the office at approximately 11:00 am. 

After Ms. Lindner went into Ms. Cordova’s office, Ms. Cordova closed the door and 

stated “let me pull up this email from Carrie [Smith].” Ms. Cordova then began 

discussing that Ms. Lindner would not be around forever and they needed to prepare a 

business continuity plan to “protect Carrie”. 

20. In the meeting, Ms. Cordova then made several suggestions including that 

Ms. Lindner consider job sharing or reversing roles with her subordinate, the Assistant 

Administrator. Ms. Lindner indicated that she was not willing to give up her position 

and expected to continue in her position. Ms. Cordova then indicated that Ms. Smith 

wanted someone else in the Administrator role. 

21. The meeting lasted approximately 45 minutes, then Ms. Cordova 

suggested Ms. Lindner go out the back door. Ms. Lindner felt significant stress because 

of the meeting she was forced to attend with Ms. Cordova. 

22. Over the next four days, because of the stressful meeting, Ms. Lindner 

became much sicker with increasing diarrhea and intestinal bleeding. 

23. On approximately August 20, Ms. Lindner’s medical provider certified 

that her anticipated return-to-work date would be September 30, 2017. 

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24. Throughout her leave of absence, Ms. Lindner received work-related calls 

from the Foundation. For example, Ms. Lindner spoke with the Assistant Administrator 

Ruth Faultner, nearly every afternoon. 

25. On Monday, September 25, Ms. Faultner called Ms. Lindner because she 

could not log in to the CMS website. After Ms. Lindner was not able to help her over 

the phone, Ms. Lindner agreed to come in to the office the next day to help her get 

signed up. Ms. Lindner did so the following day and, while in the office, she notified 

others, including [Ms. Cordova/Ms. Smith?] that she was getting better and planned to 

see her physician on September 28 to obtain a release to return to work. 

26. On Thursday, September 28, while Ms. Lindner was in the exam room at 

her primary care physician, she received a call from Ms. Cordova and Ms. Lindner told 

her she would call her back. In that appointment, Ms. Lindner’s physician approved her 

return to work on Monday, October 2. 

27. Immediately after leaving her medical appointment, Ms. Lindner returned 

Ms. Cordova’s call and notified Ms. Cordova that she would be returning to her position 

on October 2. In that call, Ms. Cordova informed her that the Foundation would be 

moving her to the position of Assistant Administrator—a demotion—while assuring her 

that the move was not at all related to her job performance. 

28. During that call, Ms. Cordova stated that Ms. Lindner’s job was a “key 

position” but did not explain what that meant or why it was significant. Ms. Lindner 

never received a written notice of the Foundation’s intent to deny Ms. Lindner 

restoration to her prior position. 

29. Neither Ms. Cordova nor anyone else at the Foundation ever notified Ms. 

Lindner orally or in writing that she was a “key employee” subject to potential 

limitations on reinstatement under the FMLA. 

30. Neither Ms. Cordova nor anyone else at the Foundation ever notified to 

Ms. Lindner orally or in writing that a reinstatement may be denied to a key employee if 

reinstatement would cause substantial and grievous economic injury to the employer. 

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31. Neither Ms. Cordova nor anyone else at the Foundation ever notified Ms. 

Lindner orally or in writing that the employer determined some substantial and grievous 

economic injury would result from Ms. Lindner’s restoration or what that injury was. 

32. In the September 28 call, Ms. Cordova justified the move by stating that 

Ms. Lindner would not need to work as many hours per week in her new position. 

33. On Monday, October 2, Ms. Lindner arrived at work and met with Ms. 

Cordova, Ms. Smith and Ms. Faultner to discuss her return. At that point, Ms. Cordova 

suggested that Ms. Lindner could either return as the Assistant Administrator or in a 

Special Projects position. 

34. On Tuesday, October 3, Ms. Lindner returned to work and informed Ms. 

Cordova that she was not qualified to act as the Assistant Administrator because that is a 

Director of Nursing role and she had not performed those duties in over 27 years. 

Accordingly, the Foundation placed her in the Special Projects position. 

35. After several days, Ms. Cordova provided a job description for the Special 

Projects position and attempted to change Ms. Lindner to a part-time position with no 

benefits. When Ms. Lindner protested to Ms. Smith, the Foundation changed it to a fulltime hourly position. In any event, Ms. Lindner worked in that position until her 

termination. 

36. On Tuesday, December 5, Ms. Lindner received an electronic meeting 

invitation from Ms. Smith to meet with Ms. Cordova, Ms. Smith and Ms. Faultner to 

discuss “transition.” 

37. On Wednesday, December 6, Ms. Cordova, Ms. Smith and Ms. Faultner 

met with Ms. Lindner and Ms. Cordova told her that the Special Projects position had 

always been temporary and that the position would end on January 31, 2018. Ms. Smith 

likewise stated the Special Projects position was “always temporary.” 

38. When Ms. Cordova asked Ms. Lindner what she wanted to do, Ms. Linder 

stated that she wanted to return to her previous position as Administrator of the Home 

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Health Agency. In response, Ms. Cordova implied that Ms. Lindner’s employment was 

ending and indicated that Ms. Lindner would likely be given some severance pay. 

39. On December 19, 2017, the Foundation terminated Ms. Lindner’s 

employment effective immediately. 

40. On January 15, 2018, Ms. Lindner filed a charge of discrimination with 

the Equal Employment Opportunity Commission (“the EEOC”) alleging disability 

discrimination and retaliation for seeking a reasonable accommodation, all in violation 

of the ADA. 

41. At Ms. Lindner’s request, on January 31, 2018, the EEOC issued a Notice 

of Right to Sue. 

42. As a result of the Foundation’s conduct, Ms. Lindner has suffered and 

continues to suffer lost income, lost fringe benefits, medical expenses, mental anguish, 

emotional distress, pain and suffering, humiliation, inconvenience, harm to reputation 

and loss of enjoyment of life. 

COUNT ONE 

 (Interference with Rights under the FMLA) 

43. Ms. Lindner incorporates all previous allegations as though set forth fully 

herein. 

44. At all relevant times, the Foundation was an employer within the meaning 

of the FMLA. 

45. At all relevant times, Ms. Lindner was an eligible employee within the 

meaning of the FMLA. 

46. The Foundation violated the FMLA by requiring Ms. Lindner to attend 

meetings and perform work during her medical leave of absence. 

47. The Foundation additionally violated the FMLA by failing to reinstate Ms. 

Lindner to the same or equivalent position that she held prior to the medical leave. 

48. To the extent the Foundation claims that Ms. Lindner met the definition of 

“key employee”, the Foundation further violated the FMLA by failing to notify Ms. 

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Lindner in writing at the time of the leave request, or as soon as practicable thereafter, 

that the Foundation had determined that she was a key employee and that the 

Foundation may deny reinstatement if it would cause substantial and grievous economic 

injury to the employer but the denial will not diminish the employee’s rights to health 

information. 

49. To the extent the Foundation claims that Ms. Lindner’s reinstatement 

would have caused a substantial and grievous economic injury to the employer, the 

Foundation further violated the FMLA by (1) failing to make that determination as soon 

as possible; (2) failing to notify Ms. Lindner in writing at the time of that determination 

that the Foundation intended to deny reinstatement upon completion of the FMLA leave; 

(3) failing to provide notice to Ms. Lindner in writing of the basis for the determination 

that reinstatement would cause a substantial and grievous economic injury to the 

employer; (4) failing to give Ms. Lindner a reasonable time to elect to return to work 

after notice of the determination; and (5) failing to give Ms. Lindner an additional 

opportunity to request reinstatement to her prior position at the end of her leave. 

50. As a result of the Foundation’s conduct, Ms. Lindner has suffered and 

continues to suffer lost income, lost fringe benefits, mental anguish, emotional distress, 

pain and suffering, humiliation, inconvenience, harm to reputation and loss of 

enjoyment of life. 

COUNT TWO 

(Discrimination in violation of the FMLA) 

51. Ms. Lindner incorporates all previous allegations as though set forth fully 

herein. 

52. The Foundation terminated Ms. Lindner’s employment because she 

exercised her right to take FMLA-protected leave. 

53. As a result of the Foundation’s conduct, Ms. Lindner has suffered and 

continues to suffer lost income, lost fringe benefits, mental anguish, emotional distress, 

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pain and suffering, humiliation, inconvenience, harm to reputation and loss of 

enjoyment of life. 

COUNT THREE 

(Disability Discrimination in Violation of the ADA) 

54. Ms. Lindner incorporates all previous allegations as though set forth fully 

herein. 

55. Ms. Lindner is an employee and the Foundation is an employer under the 

ADA. 

56. From May 2017 through the end of her employment with the Foundation, 

Ms. Lindner was an individual with a disability under the ADA in that at all relevant 

times she had a physical impairment that substantially limited one or more major life 

activities including limitations on the following systems: immune system, digestive 

system, gastrointestinal system, joints, skin, kidneys, blood cells, brain, heart and lungs. 

57. From May 2017 through the end of her employment with the Foundation, 

Ms. Lindner could perform the essential functions of the job she was hired to perform, 

with or without a reasonable accommodation. 

58. By June 1, 2017, the Foundation knew of Ms. Lindner's disability. 

59. Ms. Lindner's requested accommodations were not an undue hardship to 

the Foundation. 

60. The Foundation violated the ADA by failing to engage in the interactive 

process and failing to honor the necessary and reasonable accommodation of a medical 

leave of absence. 

61. The Foundation further violated the ADA by demoting Ms. Lindner and 

ultimately terminating Ms. Lindner's employment because of her disability and need for 

reasonable accommodations. 

62. As a result of the Foundation’s conduct, Ms. Lindner has suffered and 

continues to suffer lost income, lost fringe benefits, mental anguish, emotional distress, 

pain and suffering, humiliation, inconvenience, harm to reputation and loss of 

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enjoyment of life. 

COUNT FOUR 

(Retaliation under the ADA) 

63. Ms. Lindner incorporates all previous allegations as though set forth fully 

herein. 

64. The Foundation retaliated against Ms. Lindner in violation of the ADA by 

demoting her and ultimately terminating her employment because she engaged in 

protected activity, including requesting and taking leave as a reasonable 

accommodation. 

65. As a result of The Foundation’s conduct, Ms. Lindner has suffered and 

continues to suffer lost income, lost fringe benefits, mental anguish, emotional distress, 

pain and suffering, humiliation, inconvenience, harm to reputation and loss of 

enjoyment of life. 

COUNT FIVE 

(Disability Discrimination in Violation of the Rehabilitation Act) 

66. Ms. Lindner incorporates by reference all previous allegations as though 

set forth fully herein. 

67. The Foundation is subject to the requirements and strictures of the Rehab 

Act pursuant to 29 U.S.C. § 794. 

68. From May 2017 through the end of her employment with the Foundation, 

Ms. Lindner was an individual with a disability under the Rehab Act in that at all 

relevant times she had a physical impairment that substantially limited one or more 

major life activities including limitations on the following systems: immune system, 

digestive system, gastrointestinal system, joints, skin, kidneys, blood cells, brain, heart 

and lungs. 

69. From May 2017 through the end of her employment with the Foundation, 

Ms. Lindner could perform the essential functions of the job she was hired to perform, 

with or without a reasonable accommodation. 

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70. By June 1, 2017, the Foundation knew of Ms. Lindner's disability. 

71. Ms. Lindner's requested accommodations were not an undue hardship to 

the Foundation. 

72. The Foundation violated the Rehab Act by failing to engage in the 

interactive process and failing to honor the necessary and reasonable accommodation of 

a medical leave of absence. 

73. The Foundation further violated the Rehab Act by demoting Ms. Lindner 

and ultimately terminating Ms. Lindner's employment because of her disability and need 

for reasonable accommodations. 

74. As a result of the Foundation’s conduct, Ms. Lindner has suffered and 

continues to suffer lost income, lost fringe benefits, mental anguish, emotional distress, 

pain and suffering, humiliation, inconvenience, harm to reputation and loss of 

enjoyment of life. 

COUNT SIX 

(Retaliation under the Rehabilitation Act) 

75. Ms. Lindner incorporates all previous allegations as though set forth fully 

herein. 

76. The Foundation retaliated against Ms. Lindner in violation of the Rehab 

Act by demoting her and ultimately terminating her employment because she engaged in 

protected activity, including requesting and taking a reasonable accommodation. 

77. As a result of The Foundation’s conduct, Ms. Lindner has suffered and 

continues to suffer lost income, lost fringe benefits, mental anguish, emotional distress, 

pain and suffering, humiliation, inconvenience, harm to reputation and loss of 

enjoyment of life. 

78. Ms. Lindner demands a jury trial on all claims and issues set forth herein. 

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff Mildred Jane Lindner prays for judgment against 

Defendant Foundation for Senior Living as follows: 

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A. For an award of economic damages in an amount sufficient to make 

Plaintiff whole for past and future lost income and benefits and other 

economic losses suffered by Plaintiff resulting from Defendant’s conduct; 

B. For an award of compensatory damages for mental anguish, emotional 

distress, pain and suffering, humiliation, inconvenience, harm to 

reputation, loss of enjoyment of life and other losses incurred by Plaintiff 

as a result of Defendant’s conduct; 

C. For an award of liquidated damages under the FMLA; 

D. For an award of attorneys’ fees and related expenses; 

E. For an award of prejudgment and post-judgment interest; 

F. For an award of Plaintiff’s costs of suit incurred herein; and, 

G. For an award of such other relief as the Court may deem just and proper. 

 DATED this 26th day of February, 2018. 

ROBAINA & KRESIN, P.L.L.C. 

By 

 David C. Kresin 

 Attorneys for Plaintiff 

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