How A Kentucky State Employee Kept His Job After Sexual Harassment Allegation, Felony
Two months after Hector Fonseca was accused of sexual harassment in 2016, the Labor Cabinet’s assistant director for human resources sat him down for an interview.
A coworker had accused Fonseca of making sexually explicit comments, showing her inappropriate photos and, on one occasion, exposing himself and making her touch his penis.
The HR administrator, Lynn Gillis, started the interview by warning Fonseca that some of the questions she had to ask might upset him.
“I don’t want to upset you,” she said. “But I have to ask the questions.”
According to a recording of the interview provided by the Labor Cabinet, Fonseca, then an IT systems engineer, denied the allegations and shifted blame to the accuser. He called her a slacker who socialized too much with coworkers, and said she made up the claims to protect her own job.
When Gillis warned him against retaliating, Fonseca told her that he had accepted a transfer to a different state cabinet. She said that made things “a little bit different.”
“We will wrap up whatever we need to wrap up with this as quickly as we can,” she said.
Fonseca was cleared of all wrongdoing two weeks after the HR interview, and the investigation was removed from his personnel file. He started a new job, with a $4,000 annual raise, at the Commonwealth Office of Technology, in the Finance and Administration Cabinet.
After an open records request from the Kentucky Center for Investigative Reporting last year, the Labor Cabinet argued that names of employees accused of sexual harassment shouldn’t be made public if those claims were unsubstantiated. The cabinet sued to prevent the release of the names, the second state agency to do so. A judge disagreed and ordered them to release the name of the employee in the agency’s unsubstantiated case.
When the Labor Cabinet released Fonseca’s name, an attorney for the agency also said they had discovered additional documents that should have been turned over to KyCIR after the original request, including the recorded interview.
Those documents shed light on the process by which the Labor Cabinet investigated, and then closed, the sexual harassment allegation.
Susan West, a spokesperson for the Labor Cabinet, declined to comment further. Fonseca didn't respond to calls or an email.
In the months after the sexual harassment investigation, Fonseca would face mounting criminal charges of domestic violence, drunk driving and felony child abuse. The Finance and Administration Cabinet’s human resources department placed him on leave, with an intent to terminate, after the felony charge early this year.
The woman who accused him of sexual harassment in 2016 heard that Fonseca was fired after the felony child abuse charge. She had left the department in early 2017, but with Fonseca gone, she returned to the Labor Cabinet for a full-time, permanent position a few months ago.
But soon after, she was notified by HR that the state wouldn’t be going through with the termination. Fonseca remains employed by the state, making $65,000 a year. When he returned from paid leave, it was to the same building as his former accuser.
“I was just surprised they would hire him back after everything he had done,” she told KyCIR. “I just couldn’t believe it.”
After Allegation, More Problems Revealed
In a recent interview with KyCIR, the woman who accused Fonseca of sexual harassment recalled enduring a wide range of mistreatment while they shared a cramped office at the Labor Cabinet.
She said Fonseca would hurl insults, degrade her and claim to record her every move through cameras in the office.
“He would come in everyday and just talk about how stupid I was. ‘You’re just a stupid contractor, you don’t do your work, I don’t know why we hired you, you’re just so stupid,’ every single day,” she said. “After so long, I don’t want to say you start believing it, but you start thinking, maybe I am a stupid contractor.”
KyCIR does not identify people who report sexual harassment.
She said Fonseca also peppered their work conversations with sexual innuendo, made her watch explicit videos and frequently said he was going to show her his penis.
One day, she said, he closed the door of the small office, stood behind her and took out his penis.
“When I turned around, my head was right at his package... I didn’t know what to say or what to do,” she said. “He said, ‘You can touch it,’ and ... he grabbed my hand and made me touch it.”
The woman asked to move out of his office, but fearing for her job security as a contractor, she didn’t tell anyone what happened. But a few months later, after she said Fonseca had an outburst, she filed her report.
During the investigation, other colleagues reported he was rude, belittling, erratic and sometimes would react angrily — yelling and slamming doors. Some expressed concerns about his attitude interfering with his work and stopping them from getting answers they needed to do their jobs.
According to the agency’s investigation, a coworker of Fonseca’s described him to HR as a “Jekyll and Hyde,” and said “if a female is in a skirt, Hector will flirt.” He also said that Fonseca had shown him photos of a woman’s breasts on his phone more than once.
Fonseca’s supervisor, Denver Collett, told the investigator he was afraid for the woman who reported and “what [Fonseca] might do in a vindictive manner behind your back.”
Collett couldn’t be reached for comment.
Months prior, records show that Collett had gone to HR with his own concerns about Fonseca. After a “blow up” over an email that Collett had sent him, Fonseca vented in a status update on the inter-office messaging system that he wanted a different job.
When Collett sent him an HR-recommended email telling him to take the status down, Fonseca replied, “Freedom of speech!”
Another coworker said that Fonseca tried to control other employees, tracking their breaks and going off on tirades when people talked too loudly. She also said she believed he didn’t like working with women.
Fonseca denied the sexual harassment, but he admitted to many of the other behaviors. He said he took it upon himself to track other employees’ computer activity and monitor their break times “for [his] own sake.”
“I feel I was being persecuted and I was the one that was working and there is a lot of employees in there that are not working,” he told the human resources investigator.
Fonseca admitted he had threatened the woman’s job. He agreed that he was combative in meetings. He admitted to setting up dummy cameras in his office to protect his personal property, and he implied to coworkers that they were recording.
“It was funny,” he said, with a laugh.
“When you go back to work...I don’t know what the outcome of all this is, but the cameras need to come down,” said Gillis.
Ultimately, HR cleared Fonseca of any wrongdoing, and approved his transfer.
The woman who filed the complaint said the case was handled about as well as she expected it would be.
Her experience, she said, is a good example of why women don’t report sexual harassment.
Arrests And An ‘Intent To Dismiss’
While he was fighting sexual harassment allegations in the workplace, Fonseca was also under a domestic violence protection order.
He was arrested and charged with misdemeanor domestic violence in August 2017 for hitting the woman who had obtained the protection order.
Five months later, in January 2018, Fonseca was indicted on charges of felony child abuse. He allegedly made a 9-year-old child kneel on rice and bottle caps while holding weights, and whipped him with an electrical cord.
In the court files, Fonseca denied abusing the child and said the cord hit him by accident. Still, he pleaded guilty to a reduced charge of criminal abuse in the second degree.
At that point, the Finance and Administration Cabinet moved to terminate Fonseca. The “intent to dismiss” letter said that a felony conviction is grounds for disciplinary action, up to and including dismissal.
“Your personnel file contains no prior history of disciplinary action,” wrote Stacy Perry, appointing authority for the cabinet. “However, the incredible breadth of your felony conviction inform[s] my determination that termination is warranted.” Fonseca was placed on leave until his termination was final.
But then, he reversed his guilty plea. According to his state personnel file, Fonseca, who is Honduran, claimed his lawyer did not inform him of the impact a guilty plea would have on his immigration status.
Fonseca instead entered into a diversion agreement. As long as he stays employed and drug-free, doesn’t commit any other offenses and doesn’t contact the victim for five years, the charges will be removed from his record.
But with the reversal of the guilty plea also came the reversal of his termination.
“In the absence of a conviction, I no longer find probable cause for your dismissal,” Perry wrote in October.
Between the arrest and the reversed conviction, the woman who accused Fonseca of sexual harassment returned to work at the Labor Cabinet.
Then, Fonseca returned to work — in her building. Some Labor Cabinet departments share the same office building as the Commonwealth Office of Technology.
She said she was prepared to stay out of Fonseca’s way. But then, on his first day back to work, she said he parked right next to her in the parking lot. She has seen him in the hallway and at the copiers, and worries about where she might see him next.
“It’s a fear every day,” she said. “He could say something else. You think anybody’s going to believe me if I report it?”
Contact Eleanor Klibanoff at firstname.lastname@example.org or (502) 814.6544.