Former groundskeeper claims he was fired for reporting state violations during disinterment on March 8
TULARE – The Tulare Cemetery District may have settled out of court with two families whose loved ones were buried in the wrong graves, but it looks like they may be headed to court to face the man who was fired after those burials.
On April 28, the Law Offices of Melo and Sarsfield in Visalia submitted a claim on behalf of former grounds crew foreman Brian Viera who says he was wrongfully terminated for being a “whistleblower” for an unlawful dual disinterment on March 8. Viera is threatening to sue the cemetery district if it does not accept the claim by mid-June.
In the claim, Viera says he showed up for work at 6 a.m. on March 8 at the North Cemetery, located on North J Street, and was scheduled by district manager Leonor Castaneda to disinter the body of Silvano Martinez, who had died on Feb. 8. Martinez was scheduled to be buried on Feb. 19 in Section D, Row D, Plot 43 of the district’s North Cemetery, the same plot where Justiniana Jacinto was buried a week earlier. Viera claims Barnes Memorial had recently finished placing the gravestone for Jacinto when Castaneda said she would “fix the paperwork” for the Martinez burial and that the family lived out of town so they “wouldn’t notice the difference.” She then directed Viera to dig the Martinez grave in front of Row D.
While uncovering the grave, the Martinez family arrived along with Univision 21 who was doing a story about the errors and told Viera they had not given permission for the disinterment and asked him to stop digging up the grave.
Under state law, the cemetery district manager can issue a permit for disturbing remains but only if a consent form has been signed by the deceased’s spouse, children, parents or siblings. The Martinez family claimed their father would not have wanted to move his remains and were shocked when they were told it was happening, according to Univision. If a surviving family member cannot be reached, a court order from the Tulare County Superior Court would be needed, according to California Health and Safety Code section 7500. Even in those extreme cases, the law requires the cemetery to attempt to make personal contact with the family 10 days before or attempt to reach them by mail 15 days before applying for disinterment with the court. The only exemption to these rules is if the body is being exhumed by the coroner for a criminal investigation.
“[Viera] believed that no such order was obtained in this case,” the claim read. “That same morning, [Viera] reported this violation of the law (or what he believed to be a violation of the law) to Ms. Castaneda.”
Viera says immediately after reporting the violation to Castaneda, he was called into the district office on Kern Avenue and fired without explanation. The dual disinterment and reburials were then completed by remaining groundskeepers. Viera said he was never allowed to appeal his termination or respond formally to the allegations, known as Lubey Hearing, an opportunity that was extended to Castaneda after she was terminated during closed session of an April 7 special meeting.
“This is a complete lie,” cemetery board chair Xavier Avila said in response to the claims.
Avila said he could not comment further on the issue, due to pending litigation, but did shed some doubt on Viera’s claims. By his own admission, Viera stated he received two checks when he was fired by Castaneda, “one for the current pay period and one was for accumulated vacation”, both dated March 6. This would imply Castaneda had made the decision to fire Viera the Saturday before he raised issues about the Monday disinterments.
The board was aware Viera was likely to sue for wrongful termination and agendized a discussion of anticipated litigation in closed session of the March 25 board meeting. He requested a Skelly Hearing during public comments at that meeting. Lubey hearings are different than Skelly hearings, where an employee has the right to be told why a disciplinary action was taken against them, including possible terminations. Viera attended the March 9 meeting, the day after he was released, and was allowed to speak to the board during closed session.
“It has been over three weeks since I was terminated on 3/8/2021,” Viera wrote in an April statement he provided to his attorneys. “No reason has ever been given.”
In an interview with the Sun-Gazette the day before the March 25 meeting, Viera said he was a scapegoat for the dual disinterments ordered and directed by then district manager Leonor Castaneda.
The 13-year veteran of the cemetery district noted he has always received positive reviews and given exemplary service to the district, something which had been confirmed during public comments in the meetings following his firing. He goes on his statement to say the March 8 disinterments were not an isolated incident, noting David Warnke, was nearly buried in the wrong plot on Feb. 27, just a week after burying Martinez in the wrong grave. He also stated lead foreman, David Faria, found a full skeleton when he dug the grave in November 2019 for Dollie Faria, a prominent member of the Tulare area who died in November 2019. She was named Tulare’s Woman of the Year in 2005.
Cemetery records show two others who were disinterred and reburied after being buried in the wrong plots. In March 2017, Trenity Monsibais died after a five-year battle with leukemia. Trenity’s mother, Alicia Monsibais, posted on Facebook a groundskeeper admitted six months after the burial he had dug grave No. 54 in Block D Row FF of the North Cemetery and buried her in a grave that belonged to someone else. In January 2018, she was disinterred and reburied in grave No. 51, just three spots over.
In April 2017, Janice Ojeda was buried in the wrong grave. Her daughter, Mary Lou, had selected a location near a large tree and immediately knew she had buried in the wrong grave. Ojeda remains in the same grave where she was buried at the North Cemetery after her family decided not to fight to disinter her and rebury her in the correct plot and instead asked for a refund of the $3,000 in burial fees.
Viera said the mistakes are happening because burial procedures are not being followed. In a previous interview, Viera told the Sun-Gazette the cemetery has been using a Google Calendar system. Under the system, the office schedules which plots are to be dug up. Groundskeepers check the schedule each day to ensure they are digging up the correct plot. The use of the app allowed the district manager to easily change burial paperwork. He said other groundskeepers, such as Faria and Bobby Jones, are worried about losing their jobs as well.
“There is an atmosphere of fear among all staff at the Tulare Cemterey,” Viera wrote.
Cemetery board chair Xavier Avila has made several statements at previous meetings priding himself on keeping employee names out of the public discourse and attempt to have the public only address the board. He even cautioned another board member from discussion a personnel issue in open session.
“We didn’t retaliate against anybody. We’ve never retaliated against anybody. And no employee has ever taken the blame for another employee,” Avila said in an interview with the Sun-Gazette.
Melo and Sarsfield served a supplemental claim against the district on May 3 adding statements Avila made to the Valley Voice newspaper in response to the lawsuit. The Voice quoted Avila as saying, “Brian wasn’t fired for the reasons he is claiming,” which the updated claim said was a “clear insinuation of misconduct attributed to claimant and as such, triggers a right to a Lubey hearing. Further, the statement is violative of claimant’s privacy in his employment personnel records.” The supplemental claim continued, “At no time did claimant authorize Director Avila to publicly discuss his employment, the reasons for his termination, or his performance of his duties as a government employee.”
Avila said he was cautioned by legal counsel against commenting on the issue but felt like he needed to respond to let people know Viera’s claims were unfounded.
“I am a private citizen being accused of breaking the law and I have a right to defend myself,” Avila said in an interview with Sun-Gazette.
The board discussed the pending litigation during closed session of its May 6 meeting but did not vote to accept or deny the claim. Instead, the board took a 3-0 vote to defend Castaneda and Avila, both of whom were named as individuals in the lawsuit, as well as any “district employees/agents/directors” if it were to go to court. Avila recused himself from the vote and Trustee Alberto Aguilar was absent from the meeting.
Melo and Sarsfield said Avila forfeited any qualified immunity he had as a board member, while assuming a de-facto role as chief executive over the district manager, making him personally liable for actions taken by the district against Viera.
Viera’s claim was listed as in excess of $10,000 for loss of pay, benefits, retirement, being subjected to emotional distress and retaliation for reporting to his manager what he believed was a violation of the law as well as having his private employment information released to the public. Sarsfield stated his firm would be filing the case as “unlimited jurisdiction,” meaning there would not be a cap on the amount, in Tulare County Superior Court.