A former groundskeeper for the Tulare Public Cemetery District has sued the district, claiming that he was harassed and discriminated against on the basis of his race and color. He claims that the district failed to prevent discriminatory behavior before wrongfully terminating him.
Attorneys for Harvey Demp, the former groundskeeper, filed the suit in the Tulare County Superior Court on September 11. Demp is being represented by Fresno attorney Eric P. Oren.
The district was served on September 22 and has 30 days to formally respond.
According to the suit, Demp started working for the cemetery in September of 2021 as a fulltime groundskeeper under the supervision of head groundskeeper David Faria and district manager Clara Bernardo.
Demp claims he was the only Black employee at the district.
The suit claims, “During Plaintiff’s employment with Defendant, Defendant’s supervisory/management employees frequently engaged in unwelcomed, unsolicited and offensive, harassing and discriminatory conduct in the workplace towards Plaintiff on the basis of his ancestry, race and color.
The offensive, harassing and discriminatory conduct took a variety of forms including but not limited to:
- David Faria using the word n—-r in the workplace;
- David Faria using the word n—-r in Plaintiff’s presence at work;
- David Faria calling Plaintiff a n—-r while at work;
- David Faria using the word “n—-ritis” in a demeaning and degrading manner while talking to Plaintiff at work; and
- David Faria stating, he was going to hang Plaintiff from a tree.”
The suit continues to claim that these incidents took place “numerous times in the workplace” and that Bernardo observed them, yet “took no effective action to prevent and/or stop the unlawful race-based comments and conduct.”
Hemp claims that Faria and Bernardo then wrongfully accused him of drinking alcohol on the job on May 17, 2023, after Faria found empty beer cans in an area that he and a coworker had worked.
He claims that Bernardo sent him home from work with four hours pay and without performing an alcohol screening or fitness examination. The next day, he claims Bernardo accused him of drinking beer and working under the influence of alcohol before firing him.
Who is defending the district?
Soon after filing the lawsuit, Oren sent the cemetery district a preservation letter requesting that any evidence pertinent to the case be preserved.
In response, Oren said he got a phone call from John Duffy – a man who identified himself as the district’s lawyer. Oren said that Duffy basically tried to talk him out of filing the case.
Oren said Duffy insisted that no one would be able to prove Demp’s accusations.
“But that is all part of the process in these types of cases,” says Oren. “The district has their version of events and the employee has their version. The district’s position is that Demp’s termination was justified and they deny everything in the complaint. I understand the other side will have their own spin.”
Alberto Aguilar, a Tulare Public Cemetery District trustee, said the cemetery was using an attorney from Tulare County Counsel to defend the district, and that he had never heard of Duffy.
Agenda mix-ups
In another irregularity, Demp’s discrimination lawsuit was supposed to be discussed by the board during the September 28 regular meeting in closed session – but the item was incorrectly agendized, and counsel advised because of the error the board could not discuss the lawsuit.
Multiple people involved with the cemetery reached out to the Valley Voice to say they didn’t believe the item was agendized incorrectly by accident.
Linda Maloy, a member of the cemetery’s audit committee, told the Voice that the district board’s chair, Charlie Ramos, has allegedly known about the suit since September 13, but for reasons unknown didn’t tell the rest of the board or community for weeks — even though the court filing is a public document.
(The Voice found the suit through a regular search of Tulare County Superior Court records.)
The lawsuit was then agendized again for an October 5 special meeting, which usually has fewer attendees compared to a regular meeting.
During the Special Meeting four members of the community voiced their displeasure with the board.
“I am not here to make any comments regarding the lawsuit against the Cemetery Board,” Maloy said. “Anyone with any common sense saw this coming because of lack of attention that was paid by board to what ‘their’ employees were doing,”
Maloy focused the rest of her comments on the ballooning budget and decreasing income.
Yolonda Allen echoed Maloy’s sentiments.
“Your actions could have prevented the infractions or minimized the negative repercussions which the District is facing today. Your failure to take action or take any steps to stop or address the actions of others is negligence. It’s your duty to protect and maintain the public trust,” Allen said. “When you, the trustees fail to act, as government trustees, you have committed a breach of trust. This board is guilty of that charge and I’m requesting that you resign your positions immediately.”
After the Trustees came out of closed session Ramos made a vague statement saying that the trustees assigned county counsel to do an investigation. According to Aguilar, there was no mention of the lawsuit or what county counsel was going to investigate.
The exact statement was not included in the cemetery’s recording of the meeting, nor did the district office provide the Voice a copy of the statement.
Excavating the Truth
Responding to Duffy’s claim that it would be impossible to prove his case, Oren told the Voice that he intends to take depositions of all witnesses, under oath, in order to get the truth.
Maloy told the Voice that he is “going to get an earful!” – claiming that employees have come forward confirming that Faria does use the terms quoted in the lawsuit.
She alleges employees, management, and the trustees all have known that Faria “spoke like this on the job.”
“They [Bernardo and Faria] started plotting how to fire him [Demp] a year ago,” said Maloy.
She said she heard about the plot “because someone couldn’t keep their mouth shut.”
Unfortunately, Maloy said, now several employees fear for their jobs because they spoke openly about Faria to the trustees. According to Maloy, they fear Bernardo would have them fired also.
Damages
Demp is asking for compensatory “damages including past and future lost wages, lost employee benefits (with interest on said amounts), diminished employability, other economic injury, and emotional distress damages.”
He is also asking for economic and non-economic damages, punitive damages and attorney’s fees.
“I requested this case be heard by a jury and the jury will be made up of employees who typically will identify with another employee and how devastating it is to be fired,” said Oren.
“I only get paid if I win so I don’t accept cases that sound bogus,” he added. “I really believe in my guy.”
District has a history of potentially discriminatory behavior
The district has been involved in prior controversies that have led to allegations of discrimination.
In 2020, three male members of the district’s board attempted to oust the only woman on the board, former trustee Vicki Gilson.
In addition, members of the board have voted twice to censure the only Hispanic on the board, Alberto Aguilar, twice.
In order to throw Gilson off the board Trustees Steve Presant, Xavier Avila, and Jim Pennington accused Gilson of not attending meetings or communicating with the board from December 18, 2019 through May 28, 2020.
Missing three consecutive meetings automatically results in the board member’s seat being vacated.
Documentation was provided that proved the accusations false and their attempts to vacate Gilson’s seat due to missed meetings failed.
After the board members’ first attempt failed, they embarked on a campaign to declare that Gilson’s primary residence was not in Tulare.
During this period Presant drove by her house, parked in her driveway, peeked in her windows, looked in her trash, turned on her water, knocked on her neighbors’ doors identifying himself as a friend, and took pictures of her property. He then reported her allegedly overgrown yard to Tulare Code Enforcement.
Gilson ultimately retained legal counsel and sent Presant a cease and desist letter.
Avila did the same but also conducted a private investigation of Gilson and her husband, Larry Gilson, researching where Larry Gilson lived, where he was registered to vote, and if the two of them voted.
Avila interrogated Gilson during the September 2020 meeting, “Where are your heirlooms? Where are your baby pictures? Where do you go to the doctor, where do you buy your gas, where do you do your banking? Why didn’t you vote in the primary?”
At one point he demanded to know if Vicki and Larry were separated.
Aguilar fumed at their treatment of Gilson and reminded the board that the cemetery district is setting itself up for civil litigation at taxpayer expense. “If it were me,” Aguilar said, “I would sue the hell out of you, and you can quote me on that.”
In contrast, Presant missed four consecutive regular board meetings this year on January 26, February 23, March 30, and May 26. There was no regular meeting in April.
Aguilar said that Steve’s absences in 2023 were never discussed except to say, “he is in Australia.”
“No permission was requested and none was given,” said Aguilar.
Presant was not in attendance at the October 5 special meeting either.
Aguilar said that he “definitely” believed the extraordinary effort to remove Gilson from the district’s board was because she was a woman.
“She knew more than anyone else on the board,” said Aguilar.
For his part, Aguilar is the only board member to ever be censured at all – and he was censured twice, once at the board’s regular meeting in July of 2021 and again in July of 2022.
In 2021 he was censured by the four White board members over an unsubstantiated claim he disclosed information from a closed session.
In 2022, the same men voted a second time to censure Aguilar for “acting on his own, apart from the board.”
At the July 2022 meeting Presant moved to change the district’s bylaws to revoke the modest compensation trustees receive for attending meetings.
In a letter written to the other board members, Ramos objected to this change in the bylaws stating, “I believe this action is being done as a punishment for a singular trustee’s actions [Aguilar] these last few months.”
