The Tulare Public Cemetery District (TPCD) was served again this morning concerning former groundskeeper Brian Viera’s potential lawsuit against the district.
Maggie Melo, of the Law Offices of Melo and Sarsfield, served TPCD an updated Claim 910 in Viera’s potential lawsuit against the district.
The Supplemental 910 Claim on behalf of Brian Viera was updated to include additional charges and clear up a detail concerning the day Viera was fired. The updated letter states that Tulare Cemetery Board Chair Xavier Avila was not physically in the office when Viera was fired but was on the cemetery grounds.
The updated claim also adds new charges to Viera’s potential suit.
Avila’s comments in yesterday’s Valley Voice article threw confusion into why Viera was fired.
According to Melo’s updated claim, Avila implied that Viera wasn’t fired for telling former manager Leonor Castaneda that the cemetery was breaking the law, but rather he was fired for misconduct.
The letter states that Avila’s comment “was a clear insinuation of misconduct attributed to claimant and as such, triggers a right to a Lubey hearing.”
Fueling the lawsuit – unanswered questions surrounding why Viera was fired
Taken by surprise over his termination after working at the cemetery for 14 years, receiving good evaluations, and a promotion in 2018, Viera’s reasons as to why he was fired has evolved.
The Valley Voice reported on March 19, “Viera was not told why he was fired but believes he is being blamed for the grave mix-up (during the double disinterment) and is considering suing to get his job back.”
Over the next few weeks, Viera and his lawyer Melo believed that he was possibly fired for alerting the main office that they were breaking the law by disinterring a body against a family’s wishes.
But that hypothesis came under scrutiny after the Valley Voice published yesterday’s article concerning Viera’s 910 Claim.
Because of Avila’s comments to the Voice, it is now suspected that Viera might have been fired for misconduct. In Melo and Sarsfield’s supplemental 910 Claim, a new charge has been added to Viera’s possible suit of TPCD violating Viera’s right to privacy and denying him a Lubey hearing.
According to the updated 910 Claim, “On/about May 3, 2021, the Valley Voice newspaper published a story regarding this matter. In the article, Director Avila stated words to the effect that “Brian wasn’t fired for the reasons he is claiming.” That statement is 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. 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.”
The letter continues, “Claimant was not and has not been afforded any opportunity to appeal his termination, nor was he offered an opportunity to have a “Lubey” hearing to respond to any allegations of misconduct. Other district employees have been afforded “Lubey” hearings, including the former district manager, Castaneda.”
Does not want his job back
Since March, Viera not only reassessed why he was fired but realized he does not want to work for TPCD.
Families with loved ones buried at Tulare’s cemetery have loudly protested his termination and given emotional pleas during TPCD meetings to rehire Viera.
Despite the public’s support, Viera no longer wants his job at TPCD because of the toxic work environment. Seven employees have been fired from TCPD in the last three years while a current employee lives in fear everyday he reports to work that it will be his last.
The Supplemental 910 Claim on behalf of Brian Viera resets the clock on the districts 45 days to respond. The district has until mid-June to respond before Viera files a lawsuit.
Avila has lied and has made it a toxic invironment. The grounds keepers No all the wrong he has done and let me tell you he has do a lot, but they will be fired if they come forward.
Our Tulare Public Cemetery District’s (TPCD) Board of Trustees current Chair, Xavier Avila, and last years Chair, Steve Presant, need to be held accountable for their consistent complicity in the cemetery’s mismanagement that has resulted in multiple profound problems. Our Tulare County Board of Supervisors (BOS), specifically Supervisor Pete VanderPoel, also need to start acting after opting to repeatedly ignore public grievances and have found excuses through County’s Cousnel not to exercise the Tulare County’s Grand Jury’s 2020 Report Recommendations on the TPCD specifically regarding the BOSs power to remove TPCD Trustees.
“There is an important exception to this rule, which is founded upon the Fourteenth Amendment. It arises where there is a deprival of the ‘liberty’ guaranteed all persons by that amendment’s due process clause. The exception will be applied where the probationary employee’s job termination, or dismissal, is based on charges of misconduct which ‘stigmatize’ his reputation, or ‘seriously impair’ his opportunity to earn a living , or which ‘might seriously damage his standing or associations in his community’ .
“Where there is such a deprival of a ‘liberty interest’ the employee’s ‘remedy mandated by the Due Process Clause of the Fourteenth Amendment is “an opportunity to refute the charge” and “to clear his name.”‘ He must be afforded ‘”‘notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective.'”‘ ” ( Lubey v. City and County of San Francisco, supra, 98 Cal. App. 3d at p. 346.)
https://www.lawpipe.com/California/Lubey_v_City_and_County_of_San_Francisco.html
I couldn’t agree more about Vanderpoel and one of his appointees. He reappointed Aguilar even though he and the Attorney General had received thousands of recall signatures. Aguilar continues to be the one board member who will never agree to anything brought before the board.
I didn’t know that you studied labor laws in addition to your service job Alex. Good for you.
For the record, my comment was not meant to be an insult upon you Alex. It was meant to be a compliment. I attended college while working in a service job. My apologies that someone took it the wrong way.
Yolanda is as uninformed and delusional as Chairman Avila. All Board members are to be educated on Cemetery laws, and the Chair is the point of contact for County Counsel and interacts frequently with that office and is informed of the law.
The labor laws are easily searchable if a person is technologically proficient and wants to be informed – as Alex is. Your comments toward Alex and your reference to his service job are demeaning and mean-spirited – but then when you are an executive with a $5/jewelry business, I suppose it means you value your skills highly.
You are a laughingstock. Your comments don’t hurt my feelings nor make me feel inferior. I’m a successful business woman, can you say the same?
Have a great day!
Yikes..and the plot thickens (no pun)