This article was updated at 4:00pm
The Tulare Public Cemetery District (TPCD) was served with a 910 claim on behalf of former groundskeeper Brian Viera who intends to sue for wrongful termination.
On April 28 John Sarsfield, of the Law Firm of Melo and Sarsfield, served the TPCD’s main office with the preliminary paperwork necessary before taking formal legal action. Office assistant Lydia Cervantes received and signed the service.
TPCD has 45 days to respond. If they do not respond Viera has six months to file his suit.
“It’s a pretty cut and dry case of retaliation,” said Maggie Melo the lead lawyer in the case. “Brian informed the former manager Leonor Castaneda that she was breaking the law and he was fired the same day.”
Also tangled in the litigation crosshair is TPCD Chair Xavier Avila.
According to the claim, in the course of Viera’s termination Avila played a pivotal managerial role. Avila’s alleged involvement in Viera’s termination usurps his immunity from legal exposure enjoyed by trustees sitting on a public board.
This will be the second lawsuit faced by Avila in so many months if the district decides against settling.
Viera warns Castaneda the cemetery needs the family’s permission
Viera’s claim revolves around the now infamous double disinterment that occurred at Tulare ‘s North Cemetery.
According to Viera’s claim, On March 8, 2021, he reported to work at approximately 6 am.
“He was present with some co-workers. On that date, his duties were to disinter a body. Claimant was ordered to disinter the body by Leonor Castaneda, the cemetery district manager.
“The decision to place human remains in any particular grave is made only by Ms. Castaneda and/or her predecessor(s). Claimant had no role in deciding where (which plot) to bury human remains.
“As claimant began work that date, he was contacted by the family of the deceased (Silvano Martinez). Family members as well as Channel 21 (Univision) were present on the cemetery grounds on that date. Family members informed claimant that they objected to the disinterment of their family member. They advised claimant that they had not given permission for the disinterment, and that they wanted it stopped. Claimant responded to them by telling them that he would contact the manager (Ms. Castaneda) and report their objections to her.
“Having worked at the cemetery district for many years, claimant believed that it was illegal to disinter bodies over the objection of the family. Claimant believed that a court or health department order was required before the disinterment of a body. Claimant believed that no such order was obtained in this case.
“That same morning, claimant reported this violation of the law (or what he believed to be a violation of the law) to Ms. Castaneda.
“Immediately following claimant’s report of the violation of the law to Ms. Castaneda, claimant was summoned to the district office. Present in the office was director Xavier Avila and Ms. Castaneda. Claimant was immediately fired from his position of almost 14 years. No explanation was given for his immediate termination.
“Claimant was fired because he refused to carry out Ms. Castaneda’s illegal order and because he reported the violation of the law to his employer. On further information and belief, Director Avila encouraged, ordered, or coerced Ms. Castaneda into immediately firing Claimant.
On information and belief, Director Avila has not been acting as a ”director” of the governmental agency, but rather, Mr. Avila assumed the de-facto role of the actual chief executive. Director Avila has thereby forfeited any qualified immunity he may have otherwise had in this matter. On information and belief, while acting in this assumed role, Director Avila ordered Ms Castaneda to carry out the firing of Claimant.”
Avila responds to letter
“I wasn’t at the cemetery office and I wasn’t with Brian and Leonor when he got fired. In fact I never seen (sic) Brian,” said Avila.
“The whole thing is one big lie, all of it and I have the evidence to prove it.”
Avila continued his response to the 910 Claim, “I actually stopped the disinterments. That letter is a total joke. You can win lawsuits on 100 percent lies.”
“Brian wasn’t fired for the reasons he is claiming.”
Cemetery paying a lot for their mistakes
Though the TPCD board of trustees did not disclose their reason, it is assumed that Castaneda was also fired because of her involvement in the double disinterment. Castaneda had been given raises and praised by Avila for how well she handled the grieving public up until just before the disinterments.
As recently as January of this year Castaneda was receiving increased employment benefits either through a pay raise or more vacation time.
During the board’s April 7 closed session they approved settlements for both families involved in the double disinterment; $3,518 for the Jacinto family and $6,400 for the Martinez family. Another potential lawsuit brought by Jesse Martin’s family over Castaneda’s handling of their daughter’s burial is also pending.
Castaneda was given a $5000 severance package in exchange for her resignation on April 22.