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DOL Lawyer Behind Oracle Case Chooses Termination Over Transfer

Dec. 7, 2020, 11:42 PM

The U.S. Labor Department’s top West Coast litigator, who spearheaded a high-profile pay-discrimination case against Oracle America Inc., has declined an involuntary transfer to a non-legal post, allowing the Trump administration to terminate her.

Janet Herold, the department’s solicitor for the Western region, was notified in July that she was being reassigned to head the Occupational Safety and Health Administration’s Chicago office.

In August she filed a whistleblower complaint alleging that Labor Secretary Eugene Scalia had illegally moved to reassign her in retaliation for voicing concerns internally that, in her view, he was trying to improperly intervene in the Oracle matter to reach a lenient settlement. Scalia, in statements issued through department spokespeople, denied any improper involvement or engagement with Oracle and its attorneys.

Herold, an Obama-era appointee who joined the department in 2012, was given a deadline by DOL leaders of Monday, Dec. 7, to either accept the reassignment or be fired.

“I will not accede to a prohibited personnel practice, as your reassignment is clearly an effort to punish me for my perceived political affiliation and my protesting of your improper communications with Oracle, a close and public ally of President Trump, regarding a matter under litigation by the Solicitor’s office,” Herold said in her letter, a copy of which was shared with Bloomberg Law.

Herold’s decision to decline the new post means Scalia can proceed to terminate her before President-elect Joe Biden is sworn in on Jan. 20.

Herold’s attorney, Alexis Ronickher, said in a statement that Herold “was told by a senior person on the Biden transition team that a senior official in the Department of Labor revealed during a transition team meeting that the Department’s plan was to terminate her by January 20, 2021, and that ‘this all’ has been driven by Secretary Scalia himself to make sure that Ms. Herold was not there when the Biden Administration arrived.”

A Labor Department spokesman said in a statement: “No department official familiar with the Secretary’s thinking on this matter has participated in transition meetings. Therefore, these allegations are patently false.”

The department’s prepared statement didn’t address whether DOL will immediately move to terminate Herold and try to install her replacement before Jan. 20.

‘Erroneous Speculation’?

If Scalia does in fact move to fire her for failing to accept the reassignment, Herold, a member of the senior executive service, would remain employed at DOL for 30 more days, under terms of federal civil service law. Her last day would likely be Jan. 6, at the earliest—a schedule that leaves little time for President Donald Trump‘s DOL leadership to hire her replacement.

Herold’s whistleblower complaint is under investigation by the U.S. Office of Special Counsel, an independent federal agency, which has twice asked DOL leadership to give it more time to do its work. Just last week DOL brass decided not to pursue an appeal of the agency’s loss in the Oracle case.

After that decision was announced, a department official wrote a lengthy letter Friday to a congressional Democrat that rejected Herold’s allegation that Scalia meddled in the Oracle litigation, calling it “meritless.”

“Ms. Herold’s retaliation allegations rest on erroneous speculation regarding matters she is not in a position to know,” Deputy Assistant Secretary Joe Wheeler, DOL’s top congressional liaison, wrote.

The independent OSC, which investigates whistleblower allegations made by federal employees, had most recently asked Scalia to extend Herold’s deadline to decide on the transfer by 90 days—a timeline that would have delayed the matter until after Inauguration Day. Department leadership rejected the 90-day request, but opted to move the deadline back by 10 days, to Monday.

In the Friday letter, Wheeler denied that Scalia had tried to negotiate a settlement in the Oracle case and said Herold “did not ‘blow the whistle’ as she claims” because the secretary wasn’t aware she had objected to his involvement in the prosecution before DOL notified her of the reassignment in July.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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