The Kentucky Labor Cabinet on Monday complied with a judge’s order to publicly name an employee who was accused of sexual harassment, but cleared by an internal investigation.
Franklin Circuit Judge Phillip Shepherd ruled this month that names of employees accused of sexual harassment should be public regardless of whether the claim was proven, and ordered the cabinet to provide the Kentucky Center for Investigative Reporting with the name it previously withheld. The cabinet sued KyCIR in April to keep the names of employees secret, if the allegations weren’t substantiated.
“[T]he Cabinet is choosing — under protest — to exercise discretion and no longer withhold the identity of the former employee… who has been at the center of this litigation,” Labor Cabinet General Counsel Michael Swansburg wrote in a letter to KyCIR’s attorneys.
The Finance and Administration Cabinet is appealing a similar ruling by Shepherd. That case is ongoing.
The name the Labor Cabinet previously kept secret was Hector Fonseca, 42. He was accused of sexual harassment in 2016 while working as an IT systems engineer. The complaint was not substantiated, and he was transferred to another cabinet.
Court records show that while the internal investigation was ongoing, Fonseca was under a court order to stay away from a woman who accused him of domestic violence. In the two years since, he has been charged with domestic violence, driving under the influence and felony child abuse, records show.
The allegation of sexual harassment was lodged by a female coworker in September 2016, who said Fonseca exposed himself and forced her to touch his genitals multiple times over a period of six months.
The Labor Cabinet’s human resources investigation did not substantiate the allegations. A letter sent to the accuser by the cabinet noted that she didn’t tell anyone at work and no one witnessed the harassment. She reported the allegations about four months after the harassment occurred.
The letter said that investigators interviewed Fonseca, and he denied all wrongdoing.
Reached Tuesday by phone, Fonseca agreed to speak with a reporter at a later time but didn’t return follow-up calls or emails.
Two days after he was cleared of wrongdoing and taken off investigative leave, in December 2016, Fonseca was transferred to the Commonwealth Office of Technology. Today, he makes nearly $65,000, according to the state’s salary database.
Michael Abate, a Louisville attorney representing KyCIR, said this a perfect example of why the public needs to know about these allegations, whether or not they are substantiated.
“This case shows that often public employees who are accused of serious misconduct are dealt with simply by pushing them out the door and allowing them to move to other positions of public trust without anybody knowing … about the serious allegations about them,” said Abate.
In a statement, Glenn Waldrop, a spokesperson for the Finance and Administration Cabinet, which oversees Fonseca’s current department, pointed out that no complaints against Fonseca have been substantiated.
“The Finance and Administration Cabinet respects the Due Process rights of its employees and presumes all persons innocent unless proven guilty,” Waldrop said.
The Labor Cabinet did not immediately respond to emailed questions.
After Investigation Concluded, Three Arrests
Before Fonseca was accused of sexual harassment at work, judges had twice issued protective orders against him for domestic violence allegations.
The first accusation came in 2009, when a woman requested and received an emergency protective order against Fonseca. She retracted the request 12 days later.
In 2014, the same woman again requested an emergency protective order. The file noted that domestic violence had occurred and that Fonseca had enrolled in counseling. The parties were to have no contact and remain 500 feet away at all times.
A judge extended the protective order for the woman through 2017. The claim of sexual harassment came during that period.
A few months after the domestic violence order expired, in August 2017, Fonseca was charged with misdemeanor domestic violence for allegedly striking the same woman in the head with a beer mug. He pleaded guilty with an Alford plea, which denies wrongdoing, and received a six-month suspended sentence, provided he didn’t engage in any unlawful behavior for the next 24 months.
In January, Fonseca was arrested again on a charge of felony child abuse.
Fonseca allegedly choked and whipped a 9-year-old boy with an electrical cord, forced him to kneel on rice and bottle caps while holding weights and made him eat until he threw up.
In the court files, Fonseca denied any physical abuse and said the cord hit the child by accident.
He initially pleaded guilty to a reduced charge of criminal abuse in the second degree. But after replacing his lawyer, Fonseca withdrew that plea and, earlier this month, entered into a diversion agreement.
Fonseca must stay employed and drug-free, remain law abiding and not commit any other offenses, according to the agreement. He also cannot contact the victim. If he abides by those rules for the next five years, the case will be dismissed and he won’t have a felony conviction.
“He, with his attorney, has entered into this diversionary agreement with the full approval of the mother of the child in order to ensure that, during this period of diversion, he has absolutely zero contact with the victim,” said Assistant Commonwealth Attorney Zach Becker.
Between the child abuse arrest and the diversion agreement, Fonseca was also arrested on a charge of drunk driving. He pleaded guilty, paid more than $700 and completed a driving course.
Fonseca remains employed at the Commonwealth Office of Technology as a database analyst.
When the Labor Cabinet revealed Fonseca’s name to KyCIR, it also notified KyCIR that additional documents from the 2016 sexual harassment investigation had recently been found. Those documents, which include a recorded interview with Fonseca and statements from other employees, have not yet been provided.
None of these documents will be found in Fonseca’s personnel file, however. The Labor Cabinet agreed to remove all references to the sexual harassment allegation after its internal investigation said the woman’s claim couldn’t be proven.