## Section in which Mr. “F” worked suffered from an atmosphere of religious ## Source details **Canonical URL:** [Section in which Mr. “F” worked suffered from an atmosphere of religious](https://www.imf.org/-/media/files/imfat/imfat-4.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/imfat-4.pdf.md) - [Structured JSON version](/-/media/files/imfat/imfat-4.pdf.json) --- ### Findings on religious bigotry, harassment, and Fund responsibility - The Administrative Tribunal of the International Monetary Fund found “ground to conclude that Applicant suffered from harassment in the workplace, as that concept is defined in the Fund’s Policy on Harassment.” (Mr. “F”, para. 91). - Tribunal determinations in Mr. “F” (IMFAT Judgment No. 2005-1): - Evidence that Mr. “F” “felt, and had reason to feel, hostility from certain colleagues because his religion was different from theirs.” (Mr. “F”, para. 101). - An atmosphere of religious animosity was regarded as tantamount to harassment that adversely affected Mr. “F”’s work performance and perhaps health. (Mr. “F”, para. 101). - There was also evidence that harassment had non-religious origins. (Mr. “F”, para. 101). - The Tribunal noted “there is also evidence that he may have contributed to the malign atmosphere in the Section by his own behavior.” (Mr. “F”, para. 100). - Management response and Tribunal conclusion: - “No evidence in the record that Fund supervisors took effective action to deal with that unacceptable situation.” (Mr. “F”, para. 100). - Appointment of a senior economist to investigate personnel problems was insufficient to absolve the Fund of responsibility for failing to address Mr. “F”’s complaints of religious hostility. (Mr. “F”, para. 101). - The Tribunal concluded the Fund failed to take effective measures in response to religious intolerance and workplace harassment and awarded compensation on that ground. (Mr. “F”, Decision). ### Legal and policy sources cited on harassment and discrimination - Policy texts and definitions referenced by the Tribunal: - Policy on Harassment, January 1995. - Staff Bulletin No. 99/15 Harassment – Policy and Guidance to Staff, June 18, 1999 (quoted in Mr. “F”, para. 91). - Fund’s Discrimination Policy (quoted): harassment, unfair treatment, abuse of power, and favoritism may become discriminatory when they develop into a pattern and systematically address certain individuals or groups and have an impact on employees’ performance, development, career opportunities, and career progress. (Policy quote, p. 5). ### Reorganization, abolition of position, and procedural failings in Mr. “F” (1998–2004) - Organizational and timeline facts: - Applicant joined the Fund on February 4, 1980. - Position abolished effective November 1, 2001; official notice given October 25, 2001; informed in meeting on October 24, 2001. - Reassignment period established: six-month reassignment period of November 1, 2001–April 30, 2002; if unsuccessful, extended notice period of 120 days followed by maximum 22.5 months of separation leave at full pay pursuant to GAO No. 16. (Administrative arrangements confirmed by letter dated January 16, 2002). - Separation from service effective July 31, 2004. - Senior economist assignment and findings (Nov 30, 1998 – mid-2000): - Senior economist mandate: “diagnose the actual roots of the problems and to recommend concrete, workable, fair, and durable solutions,” act as independent observer, guide/coach Section Chief, investigate complaints, and “make recommendations regarding the future structure, role, size and staffing of the Section.” - Senior economist reported manipulation of productivity statistics, favoritism, and that Mr. “F” was “easy to work with,” “a reliable, can-do operator,” and performed at “the level of a research assistant.” - Senior economist resigned in mid-2000 citing inadequate support. - Reorganization rationale and implementation: - January–June 2001 proposals merged small language Sections to achieve “economies of scale,” proposed abolishing the [“Language 1”] TCA (Mr. “F”’s post), and suggested rebuilding the Section “without those staff members who have been at the heart of its continuous problems for many years.” - June 2001 proposal approved in July 2001; merger took effect August 1, 2001; full implementation delayed to October 2001 due to health concerns for Applicant. - Three positions in the “Languages 1 & 2” Division were abolished in October 2001; TCA duties reallocated to two existing TCAs from the “Language 2” sector. - Procedural failing on notice: - Tribunal held the summary notice given to Mr. “F” was “hardly adequate” and that fair and transparent procedures require reasonable advance notice to permit contestation. (para. 106; Judgment No. 2005-1). ### Legal standards applied to abolition and redundancy - Test for lawful abolition (GAO No. 16, Section 13): - Position must be abolished or redesigned to meet institutional needs and the incumbent be no longer qualified; efforts to reassign shall be made over not less than six months; notice entitlements include 60 calendar days’ notice extendable up to 120 calendar days by Director of Administration. (GAO No. 16, Sections 13.01–13.04 quoted). - Tribunal’s material-difference test: - Comparison between the abolished position (TCA) and redesigned positions (TP/PA and TPA) must show material differences of substance to validate abolition. Precedent cited: Arellano (No. 2), Brannigan. - Tribunal findings on qualifications and material differences: - TP/PA and TPA required state-of-the-art desktop publishing skills, excellent command of English, and proofreading/editing in “Language 1,” which the Tribunal found materially different and more demanding than Applicant’s TCA duties. - Tribunal concluded Applicant was not qualified for TP/PA and sustained the abolition decision as a proper exercise of managerial discretion. ### Tribunal findings on improper motive and discrimination - Improper motive standard and application: - Redundancy cannot be a substitute to remove for unsatisfactory performance; redundancy used for improper motive requires causal link between irregular motive and decision. - Evidence showed restructuring had dual objectives: institutional efficiency and resolving long-standing personnel conflicts; Tribunal held additional objective of addressing personnel conflicts did not render restructuring illegitimate. - Discrimination on religious grounds: - Rule N-2 and Fund Discrimination Policy define nondiscrimination basis and that harassment or biased environment can amount to discrimination if it adversely impacts employment. - Tribunal answered whether abolition was motivated by religious discrimination: “the answer is decidedly negative.” No evidence that decision-makers who abolished Mr. “F”’s position were motivated by religious discrimination. - Tribunal nonetheless found Mr. “F” suffered harassment as defined in Fund Policy on Harassment; Fund failed to take effective measures to address religious intolerance. ### Remedies, compensation, and legal costs (Mr. “F” Judgment No. 2005-1) - Remedies ordered: - The Tribunal sustained the abolition decision but found partial illegality on procedural and harassment grounds. - Award: Mr. “F” is awarded $100,000 for the Fund’s failures to: (a) take effective measures in response to religious intolerance and workplace harassment; and (b) give reasonable notice of abolition of his post. (Mr. “F”, para. 122 and Decision). - The $100,000 award was not apportioned between the two counts on which Mr. “F” prevailed. (Mr. “F”, para. 122). - Legal costs: - Tribunal awarded seventy-five percent of the total costs submitted for Mr. “F”’s compensable legal costs, explaining that although Mr. “F” did not succeed on his principal claim, the submissions were indispensable to relief obtained on other counts. (Order No. 2005-1; Assessment of compensable legal costs). ### Discrimination Review Exercise (DRE) — scope, methodology, and IMFAT approach - Context and basic facts of the DRE: - DRE: an alternative dispute resolution mechanism implemented in the late 1990s to resolve longstanding discrimination complaints filed between August 28 and September 30, 1996. - Five review teams (each an outside consultant and a Fund staff member) conducted approximately 600 contact interviews; remedies constrained by Fund personnel policies. - IMFAT approach to DRE decisions: - Following Ms. “Y” (No. 2), IMFAT Judgment No. 2002-2 (March 5, 2002), the Tribunal applies limited review to DRE outcomes and declines de novo consideration of underlying discrimination claims. - The Tribunal reviews whether Director of Administration’s ratification of DRE findings was arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or in violation of fair and reasonable procedures. - Methodology and evidentiary standards under DRE: - Review teams were accorded “considerable leeway” in methodology; qualitative as well as statistical factors were permissible; statistics alone were not dispositive of discrimination in individual DRE cases. - Non-advancement alone was not proof of discrimination; statistics relating to DRE outcomes were held not probative of discrimination in the DRE process or in individual review. (Ms. “W”, paras. 18–21; Ms. “Z”, para. 74; Ms. “W”, paras. 28, 112; Ms. “Z”, para. 115). ### Outcomes and jurisprudence in DRE-derived IMFAT judgments (Ms. “W” and Ms. “Z”) - Ms. “W” (IMFAT Judgment No. 2005-2): - DRE review found no discrimination; awarded a one-time salary increase of 6.5 percent and career development assistance but denied promotion. - Tribunal sustained DRE methodology of using qualitative and statistical evidence; denied requests for production of comparator data and DRE outcome data as not probative or relevant to the case. - Tribunal denied Applicant’s claims and held Admissibility limited by exhaustion rules where applicable. - Ms. “Z” (IMFAT Judgment No. 2005-4): - DRE found one irregularity (lack of credit for bilingual skills) and recommended a one-time salary adjustment of 4.0 percent effective May 1, 1998. - Tribunal sustained DRE procedures and conclusions as reasonably supported; denied broader or “continuing” discrimination claims for failure to exhaust administrative review. - DRE outcomes summary (Consultants’ Report figures): - 70 cases reviewed; recommendations made for 67 cases. - Indications of “unfair or uneven treatment” identified in approximately half of the 67 cases. - Distribution of primary factors among cases where unfair treatment found: 77 percent race/nationality; 20 percent gender; 3 percent age. - Gender-disaggregated outcomes: 37 men and 30 women reviewed; indications of unfair or uneven treatment in 53 percent of women and 49 percent of men. - In cases with indications of unfair treatment: promotion primary remedy in 17 of 35 cases; within-grade salary adjustment averaged 6.2 percent in 15 of 35 cases; in many cases combined remedies and career development support provided. ### Admissibility, exhaustion, and the Tribunal’s jurisdictional limits - Exhaustion rule and related claims: - Article V (1): application to Tribunal only after exhaustion of all available administrative review channels. - Related claims may be admissible if (a) “closely linked with the challenge to the DRE decision itself” and (b) “have been given some measure of review in the context of a procedure intended to give finality to longstanding claims.” (Ms. “W”, para. 119). - Claims not closely linked or not given a measure of administrative review were held inadmissible; “continuing” discrimination claims arising after DRE were inadmissible where channels had not been exhausted. (Ms. “W”, para. 121; Ms. “Z”, para. 14). - Limits on Tribunal authority to render advisory opinions: - In Mr. “F” (Order No. 2005-2), Tribunal rejected Fund’s request for interpretation under Article XVII, finding operative provisions were not “obscure or incomplete” and Fund sought advice rather than interpretation; Tribunal declined to issue advisory guidance. (Order No. 2005-2, paras. 14–17). - Admissibility threshold for regulatory challenges: - In Baker et al., IMFAT Judgment No. 2005-3 (December 6, 2005), Tribunal denied summary dismissal and held that widening of Executive Board discretion in compensation had “some present effect” enabling admissibility; admissibility threshold under Rule XII is low—summary dismissal only if “clearly inadmissible.” ### Fact-finding authority and relation to Grievance Committee - Tribunal’s fact-finding role: - Tribunal is not an appellate body vis-à-vis the Grievance Committee; it makes independent findings of fact and law while drawing upon the record assembled through administrative review and Grievance Committee proceedings. (D’Aoust; Ms. “J”, para. 96; D’Aoust, para. 17). - Decisions of the Grievance Committee as to admissibility of evidence and production of documents are not “administrative acts” subject to Tribunal review; Tribunal may, however, examine the Committee’s record to determine weight to give it. (Ms. “Z”, para. 119–122). - Tribunal’s procedural tools: - Pursuant to Article X of its Statute and Rules XVII and XIII, Tribunal may order production of documents, request information, and hold oral proceedings to supplement any lapse in the Grievance Committee record; applicants may request such evidentiary supplements. (Ms. “Z”, para. 120; note 32). - Where documents are produced, Tribunal may examine them in camera to assess relevance and privacy concerns. (Rule XVII, para. 2; Mr. “F”, paras. 10–12; Ms. “W”, paras. 15–26). ### Concluding jurisprudential developments in 2005 - Issues confronted and clarified by IMFAT in 2005: - Lawful abolition of position requirements and material-difference test for redesign. - Recognition of religious discrimination/harassment as prohibited under Fund internal law and human rights principles. - Relationship between discrimination and workplace harassment; harassment may itself become discriminatory when it systematically impacts employment outcomes. - Refinements on admissibility and justiciability: Tribunal will decide only concrete controversies by adversely affected applicants and will not render advisory opinions on future application of judgments. - DRE-related jurisprudence: limited review standard, acceptance of qualitative as well as statistical evidence, and narrow admissibility for post-DRE or continuing discrimination claims not exhausted administratively. *IMF Administrative Tribunal Reports, Vol. IV* ### Section in which Mr. “F” worked suffered from an atmosphere of religious ### imfat-4 - Section in which Mr. “F” worked suffered from an atmosphere of religious ### Findings on religious bigotry, harassment, and Fund responsibility - The IMFAT found “ground to conclude that Applicant suffered from harassment in the workplace, as that concept is defined in the Fund’s Policy on Harassment.” (Mr. “F”, para. 91). - The Fund’s Discrimination Policy explains: “Harassment, unfair treatment, abuse of power, and favoritism are also separate from discrimination, but they can all become discriminatory if they develop into a pattern and systematically address certain individuals or groups of individuals and have an impact on employees’ performance, development, career opportunities, and career progress.” (Policy quote, p. 5). - Tribunal determinations regarding Mr. “F”: - Evidence that Mr. “F” felt, and had reason to feel, hostility from certain colleagues because his religion was different from theirs (Mr. “F”, para. 101). - An atmosphere of religious animosity was regarded as tantamount to harassment that adversely affected Mr. “F”’s work performance and perhaps health (Mr. “F”, para. 101). - There was also evidence that harassment had origins not of a religious kind (Mr. “F”, para. 101). - The Tribunal noted “there is also evidence that he may have contributed to the malign atmosphere in the Section by his own behavior.” (Mr. “F”, para. 100). - Management response and Tribunal conclusion: - “No evidence in the record that Fund supervisors took effective action to deal with that unacceptable situation.” (Mr. “F”, para. 100). - A senior economist had been assigned to investigate personnel problems, but those efforts were “not enough to absolve the Fund of responsibility for not addressing Mr. ‘F’’s complaints of religious hostility.” (Mr. “F”, para. 101). - The Tribunal concluded the Fund failed to take effective measures in response to religious intolerance and workplace harassment and awarded compensation on that ground (Mr. “F”, Decision). ### Precedents and distinctions in later IMFAT judgments - The Tribunal in subsequent judgments distinguished harassment motivated by discriminatory animus from harassment unrelated to discriminatory animus (Ms. “BB”, IMFAT Judgment No. 2007-4 (May 23, 2007), paras. 73–77; Mr. “DD”, IMFAT Judgment No. 2007-8 (November 16, 2007), paras. 67–70). - Policy sources cited in Mr. “F”: - Policy on Harassment, January 1995. - Staff Bulletin No. 99/15 Harassment – Policy and Guidance to Staff, June 18, 1999 (quoted in Mr. “F”, para. 91). ### Cases arising from the Discrimination Review Exercise (DRE) - Context: - The Discrimination Review Exercise (“DRE”) was an alternative dispute resolution mechanism implemented by the Fund in the late 1990s to resolve longstanding discrimination complaints not raised through formal channels. - IMFAT approach to DRE decisions: - Following Ms. “Y” (No. 2), IMFAT Judgment No. 2002-2 (March 5, 2002), the Tribunal reaffirmed that decisions taken under the DRE are subject to only limited review; it declined de novo consideration of underlying discrimination claims (Ms. “W” and Ms. “Z” cases). - Outcomes in Ms. “W” and Ms. “Z”: - Both Applicants alleged career harm from gender discrimination; Ms. “Z” also alleged national origin and age discrimination. - The Tribunal sustained the DRE review’s finding of nondiscrimination in each case, concluding the findings were not arbitrary or capricious and were reasonably supported by evidence (Ms. “W”, paras. 91–102; Ms. “Z”, paras. 79–112). - In Ms. “W” the Tribunal noted the Applicant had been awarded relief by the DRE for “unfair or uneven treatment” and that the DRE was not designed to determine discrimination to a legal standard (Ms. “W”, para. 102). - The Tribunal found the remedies granted by the DRE were reasonably based in both cases (Ms. “W”, paras. 103–113; Ms. “Z”, paras. 113–116). - The Tribunal rejected procedural complaints regarding composition of review teams, alleged influence of the Administration Department, and methodology as applied in each DRE review (Ms. “W”, para. 90; Ms. “Z”, para. 76). - Methodology and evidentiary standards under the DRE: - The DRE teams were accorded considerable leeway in methodology; case consideration depended on circumstances giving rise to the complaint (Ms. “W”, paras. 85–88; Ms. “Z”, paras. 68–73). - The Tribunal held it was not arbitrary or capricious to base DRE reviews on qualitative as well as statistical factors and rejected the view that statistics alone might establish discrimination under the DRE (Ms. “W”, paras. 18–21; Ms. “Z”, para. 74). - The Tribunal emphasized that non-advancement alone was not proof of discrimination (Ms. “W”, para. 98; Ms. “Z”, para. 109). - Statistics relating to DRE outcomes were held not probative of discrimination in the DRE process or in review of Applicants’ complaints (Ms. “W”, paras. 28, 112; Ms. “Z”, para. 115). ### Admissibility of parties and claims before the Tribunal - Limits on Tribunal authority: - In Mr. “F”, Applicant v. IMF, Respondent (Interpretation of Judgment No. 2005-1), IMFAT Order No. 2005-2 (December 6, 2005), the Tribunal rejected a request for interpretation pursuant to Article XVII of the Statute, underscoring that as a judicial body its authority is limited to resolution of concrete controversies and it is not empowered to render advisory opinions (Mr. “F” (Order No. 2005-2), paras. 6, 16–17). - Fund’s request for interpretation in Mr. “F”: - The Tribunal had sustained the Fund’s abolition of the Applicant’s position as a reasonable exercise of discretion, but found for Mr. “F” on two other grounds: (a) failure to take effective measures against religious intolerance and workplace harassment; and (b) failure to give reasonable notice of the abolition of his position (Mr. “F”). - The Fund requested interpretation under Article XVII seeking guidance for future application of the Judgment on: (1) the nature and purpose of the requirement of advance notice of a decision to abolish a position; and (2) how long a period of notice would be considered “reasonable.” (Mr. “F” (Order No. 2005-2), para. 14). - The Tribunal denied the request, finding the operative provisions were not “obscure or incomplete” and that the Fund was seeking advice rather than interpretation; the Tribunal is not authorized to issue advisory opinions (Statute, Article XVII; Rule XX (2); Mr. “F” (Order No. 2005-2), paras. 14–17). - Admissibility and the “adversely affecting” requirement (Article II): - In Baker et al., Applicants v. IMF, Respondent (Admissibility of the Applications), IMFAT Judgment No. 2005-3 (December 6, 2005), the Tribunal denied a Motion for Summary Dismissal and elaborated the meaning of the “adversely affecting” requirement of Article II in the context of a direct challenge to a regulatory decision of the Fund. - The “adversely affected” requirement ensures an applicant has an actual stake in the controversy; it is a minimal justiciability requirement (Ms. “G” and Mr. “H” precedent, IMFAT Judgment No. 2002-3 (December 18, 2002)). - The Fund argued the Applicants in Baker had not been “adversely affected” because the Executive Board’s decision widening discretion had not caused adverse financial consequences in the 2005 compensation round. - The Tribunal concluded the challenged decision had “some present effect” on Applicants because wider discretion assumed by the Executive Board would be applied in 2006, and that this effect permitted the Applications to “cross the threshold of admissibility.” The Tribunal noted admissibility threshold is not steep; under Rule XII an application may be summarily dismissed only “if it is clearly inadmissible.” (Baker, Judgment No. 2005-3). - The Tribunal sustained admissibility of Applications directly challenging a “regulatory” decision and found support in the Commentary on the Statute for resolving legality of regulatory decisions before considerable reliance on, or implementation of, the decision. *IMF Administrative Tribunal Reports, Vol. IV* ### 1. The Tribunal shall be competent to pass judgment upon any application: ### 1. The Tribunal shall be competent to pass judgment upon any application: ### The Exhaustion of Remedies Requirement and the Admissibility of Related Claims - Article V (1) provides: “When the Fund has established channels of administrative review for the settlement of disputes, an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review.” - In Ms. “W” and Ms. “Z” the Applicants challenged DRE review results and sought to raise additional, secondary allegations. - The Tribunal’s approach to admissibility: - Related claims may be admissible if they are (a) “closely linked with the challenge to the DRE decision itself” and (b) “have been given some measure of review in the context of a procedure intended to give finality to longstanding claims.” (Ms. “W”, para. 119) - Claims that were not closely linked to the DRE decision and that had not been given some measure of review were held inadmissible. (Ms. “Z”, para. 14, quoting Ms. “W”, para. 119) - Claims of “continuing” discrimination arising after the conclusion of the DRE process were held inadmissible where requisite channels of administrative review had not been exhausted. (Ms. “W”, para. 121; see also Ms. “Z”, paras. 15–16) - Application of the test to case facts: - Ms. “W”: Additional contentions about implementation of remedial measures and denial of promotion were admitted because they were closely linked to the contested DRE decision and had been given some measure of review. (Ms. “W”, para. 119) - Ms. “Z”: A claim relating to past merit increases presented to the Tribunal without prior administrative review was inadmissible; it was neither closely linked to the DRE decision nor given any measure of review. (Ms. “Z”, para. 14) ### The IMFAT’s Fact-Finding Authority and Its Relationship to the Fund’s Grievance Committee - Jurisprudential foundation: - The Tribunal does not function as an appellate body vis-à-vis the Grievance Committee because it makes both findings of fact and conclusions of law, and the Grievance Committee’s recommendation to the Managing Director on merits is not an “administrative act” within IMFAT’s jurisdiction ratione materiæ. (D’Aoust, para. 17; Mr. “V”, para. 129) - The IMFAT “draws upon the record assembled through the review procedures” and “is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” (Ms. “J”, para. 96; D’Aoust, para. 17) - The Tribunal may “take account of the treatment of an applicant before, during and after recourse to the Grievance Committee.” (D’Aoust, para. 17) - Limits on Tribunal review of Grievance Committee procedures: - Decisions of the Grievance Committee as to admissibility of evidence and production of documents are not subject to review by the Administrative Tribunal and are not “administrative acts” under Article II; they rest within the Committee’s authority under GAO No. 31. (Ms. “Z”, para. 119) - The Tribunal may nevertheless examine the Committee’s record to determine whether there is “any cause to discount that record in the weighing of the evidence.” In Ms. “Z” the extensive transcripts revealed “no ground to question that [the record] be given any less than the full measure of weight that the Tribunal ordinarily accords to those proceedings.” (Ms. “Z”, paras. 121–122) - Tribunal’s independent fact-finding tools: - Any lapse in the Grievance Committee’s evidentiary record “may be rectified, for purposes of the Tribunal’s consideration of the case, through the Tribunal’s authority, pursuant to Article X of its Statute and Rules XVII and XIII of its Rules of Procedure to order the production of documents, to request information and to hold oral proceedings.” (Ms. “Z”, para. 120 and note 32) - Applicants may request such evidentiary supplements; in Ms. “Z” the Applicant did not make those requests. (Ms. “Z”, para. 120) - Where Applicants do request production of documents, the Tribunal applies Rule XVII independently of the Grievance Committee’s earlier determinations and may examine documents in camera to assess relevance and privacy concerns. (Mr. “F”, paras. 10–12; Ms. “W”, paras. 15–26; Rule XVII, para. 2) ### Remedies and Legal Costs - Article XIV (1) of the Tribunal’s Statute provides: - “If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision.” - Mr. “F” judgment: - The Tribunal found partial success for Mr. “F” and exercised remedial authority under Article XIV (1). (Mr. “F”, para. 122 and Decision) - The Tribunal awarded compensation of $100,000 to Mr. “F” for the Fund’s failures: (a) to take effective measures in response to religious intolerance and workplace harassment, and (b) to give reasonable notice of abolition of his post. (Mr. “F”, para. 122 and Decision) - The Judgment did not apportion the $100,000 award between the two counts upon which Mr. “F” prevailed. (Mr. “F”, para. 122) - Legal costs (Article XIV (4)): - Article XIV (4) provides the Tribunal may order that reasonable costs incurred by the applicant, including counsel costs, be totally or partially borne by the Fund, “taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.” - In assessing compensable costs for Mr. “F”, the Tribunal awarded seventy-five percent of the total costs submitted, explaining that although Mr. “F” did not succeed on his principal claim, the record and arguments presented were indispensable to securing substantial relief on other counts; thus the Fund should bear the great majority of legal costs. (Order No. 2005-1; Mr. “F”, Applicant v. IMF, Assessment of compensable legal costs pursuant to Judgment No. 2005-1) ### Conclusion — Jurisprudential Developments in 2005 - Issues newly confronted in 2005 included: - The requirements for a lawful abolition of position. - Allegations of discrimination on the basis of religion, recognized by the IMFAT as prohibited by universally accepted principles of human rights. - The relationship under the Fund’s internal law between discrimination and workplace harassment. - Admissibility and justiciability refinements: - The Tribunal reaffirmed its role in deciding only concrete controversies presented by adversely affected Applicants and declined to render advisory opinions where the terms of a Judgment were not “obscure or incomplete.” - In Baker the Tribunal concluded Applicants challenging a revision to the compensation system met the “adversely affecting” requirement of Article II because the contested decision had “some present effect” on Applicants by widening the Fund’s discretion in staff salary setting. - In Ms. “W” and Ms. “Z” the Tribunal assessed admissibility of related claims in light of the purposes underlying the exhaustion requirement of Article V. - Relationship to the Grievance Committee: - The Tribunal reaffirmed that it makes its own findings of fact and law while drawing upon and weighing the record generated by the Grievance Committee; the Tribunal’s independent fact-finding authority can supplement any gaps in that record. *IMF Administrative Tribunal Reports, Vol. IV (Developments in the Jurisprudence of IMF Administrative Tribunal: 2005).* ### conclusions of law, while drawing upon the record assembled through the ### Judgment no. 2005-1 — Mr. “F”, Applicant v. International Monetary Fund, Respondent (March 18, 2005) ### Introduction and claims - The Administrative Tribunal of the International Monetary Fund met on March 17 and 18, 2005, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges. - Applicant’s principal contentions: - The decision to abolish his position resulted in separation from service and was motivated by religious discrimination. - He was subjected during employment to a hostile work environment based on religious affiliation differing from immediate co-workers. - The abolition was a pretext for removal rather than justified by institutional needs. - He was qualified for the redesigned position and for a second position created by restructuring but was not considered for either or given good faith assistance in finding alternative employment. - He was not given adequate notice of the abolition of his position. - Respondent’s principal assertions: - The abolition of the position was a lawful exercise of managerial discretion taken in the interest of legitimate institutional needs. - Applicant was not qualified for the redesigned position or the second available position. - Neither the abolition decision nor Applicant’s career was adversely affected by religious discrimination. - The abolition, separation, and reassignment assistance were carried out in accordance with applicable procedures, including notice of separation. - The Tribunal identified three central legal issues presented by the case: 1. The lawfulness of an abolition of position. 2. An allegation of religious discrimination prohibited by the Fund’s internal law. 3. A claim that a staff member was subjected to a hostile work environment. ### Procedure and case processing - Filing and pleadings: - Application filed November 20, 2003; Registrar advised deficiencies under Rule VII, para. 6; Applicant corrected within fifteen days and Application is considered filed on the original date. - Application transmitted to Respondent December 9, 2003. - Respondent filed its Answer on January 23, 2004. - Applicant submitted his Reply on March 1, 2004; Respondent’s Rejoinder filed April 1, 2004. - Publicity and summaries: - Pursuant to Rule XIV, para. 4, the Registrar issued a summary of the Application within the Fund on January 6, 2004, unless the President decided otherwise. - Oral proceedings: - The Tribunal decided not to hold oral proceedings; neither party had requested them and they were not necessary for disposition. - The Tribunal had the benefit of a transcript of oral hearings of the Grievance Committee at which Applicant and other witnesses testified. - Requests for production of documents were governed by Rule XVII of the Tribunal’s Rules of Procedure and relevant Grievance Committee provisions (GAO No. 31, Rev. 3). - The Tribunal exercised in camera review where appropriate to protect privacy and assess relevance. ### Requests for production of documents — outcomes and rationale - Applicant’s original requests for production (numbered as presented by Applicant): 1. Working papers, memoranda, e-mails, etc. showing how decisions on restructuring and abolition of Applicant’s position were made. 2. The report of the former Ombudsperson that had led to appointment of a senior Fund economist from outside Language Services to manage the Section and advise on solving problems. 3. The senior economist’s reports on the Section, extracts of which had been produced during Grievance Committee proceedings. 4. The senior economist’s terms of reference or management instructions regarding his tasks. 5. The report of an outside consultant engaged by the Director of Human Resources to investigate some of Applicant’s claims after Applicant lodged a request for administrative review pursuant to GAO No. 31. - Tribunal decisions on requests (December 10, 2004 decision and subsequent determinations): - Requests 1 and 4 denied because Applicant did not show he had been denied access; Fund had responded that it had provided all responsive documents as part of Grievance Committee proceedings. - Request 2 denied because Ombudsperson’s Terms of Reference provide that the Ombudsperson may not be called as a witness or otherwise be required to provide information in Tribunal proceedings. - Requests 3 and 5 were submitted for in camera review by the Tribunal after being transmitted by the Fund on December 15, 2004. - Request 3 denied on February 28, 2005: only documents relating directly to Applicant were to be produced in order to protect the privacy of other persons; the Grievance Committee had applied the same standard when producing extracts. - Request 5 denied on February 28, 2005: - The outside consultant’s report arose from Applicant’s request for administrative review and did not flow from proceedings leading up to the impugned decision; therefore the report was not relevant to the Tribunal’s assessment of the abolition decision. - The Tribunal did not adopt the Grievance Committee’s “work product doctrine” rationale but concluded shielding the report was consistent with preserving candor essential to administrative review and settlement processes. - The Tribunal examined the report in camera and concluded that the Director of Human Resources’ August 8, 2002 letter fairly summarized the report’s conclusions and that disclosure would not have provided probative value beyond other record evidence. ### Factual background — employment history and restructuring - Employment chronology and positions: - Applicant joined the Fund on February 4, 1980 as a Transcriber of his native language (“Language 1”). - 1990: appointed to post of Translation Preparation Assistant at Grade A6. - October 1996: after temporary assignment as Special Projects Assistant, assumed position of Translation Coordination Assistant (“TCA”) at Grade A6. - 1998: promoted to Grade A7. - Position was abolished effective November 1, 2001. - Organizational restructuring details: - In 1999, the “Language 1” Section, part of the Bureau of Language Services (“BLS”), was brought under the administration of the newly created department of Technology and General Services (“TGS”). - TGS combined Bureau of Language Services, Bureau of Computing Services, parts of the Administration Department, and other entities. - In 2001 refinements to TGS’s organizational structure merged “Language 1” Section into a larger pre-existing language Division to form the “Languages 1 & 2” Division. - As part of restructuring, Applicant’s and two other support positions in the “Languages 1 & 2” Division were abolished. ### Allegations and contested factual issues about the “Language 1” Section - Longstanding unit problems: - Record reflects that almost from its inception and throughout Applicant’s twenty-one year tenure, the “Language 1” Section experienced interpersonal conflict, questions about its integrity and productivity, and complaints of ineffectual supervision. - Applicant’s perspective: - Attributes problems principally to religious animosity between adherents to one major religion (a large majority of the Section) and another religion of which Applicant was an adherent. - Asserts that abolition of his position rendered the Section religiously homogeneous with no persons of his religion remaining. - Maintains that conflicts mirrored sectarian divisions present in the geographic area where “Language 1” is spoken, particularly his native country, from which several Section members were drawn. - Respondent’s perspective: - Contends that observed problems in the Section did not derive from religious animosity among the staff. *Conclusions and procedural rulings derive from the Administrative Tribunal of the International Monetary Fund’s Judgment No. 2005-1 (March 18, 2005).* ### 20. In 1998, the difficulties in the Section drew the attention of senior ### Reorganization and Abolition of the “Language 1” Section and Mr. “F”’s Position (1998–2004) ### Background and escalation to crisis (1998) - In September 1998 the Administration Department informed the Deputy Managing Director that the Section’s situation had reached “crisis proportions.” - The Administration Department and the Ombudsperson had been “heavily involved with BLS senior staff in seeking a solution to the problems.” - The BLS Director in October 1998 characterized the Section’s personnel problems as long-standing, dating “almost since its creation some twenty years ago,” and judged causes to go beyond the Section Chief’s “possible deficiencies in management skills and style.” ### Senior economist appointment, mandate, and findings (Nov 30, 1998 – mid-2000) - A senior economist from another Fund department was appointed for a two-year assignment beginning November 30, 1998, with this mandate: - “diagnose the actual roots of the problems and to recommend concrete, workable, fair, and durable solutions,” - act as an independent observer of daily activities, - “guide, coach, and advise the Section Chief as necessary,” - investigate complaints and “identify any wrongdoings,” - “make recommendations regarding the future structure, role, size and staffing of the Section.” - The senior economist reported: - The Section Chief “consistently understated the achievements and abilities of some staff members,” including Mr. “F,” and “inflated the achievement and skills of other staff.” - The Section Chief “attempted to put [the other staff member] at a comparative advantage to take a leading role in the work on DTP [Desk Top Publishing] by inflating his qualifications and experience.” - There were “doubts regarding the reliability of statistics produced to measure both the production of the Section and the individual performance of the staff,” and statistics appeared to have been “massaged” to favor certain staff. - The BLS Director expressed that the credibility of the Section’s “production/productivity stats [statistics] is, to put it mildly, seriously in doubt.” - The senior economist’s direct assessment of Mr. “F”: - Found Mr. “F” “easy to work with,” “a reliable, can-do operator,” possessing “superior organizational skills.” - Reported translation jobs “had increased by almost 50 percent over the previous year.” - Noted Mr. “F” performed at “the level of a research assistant,” produced a DTP dummy version of the [“Language 1”] WEO, and “completed the [“Language 1”] Currency list for the first time.” - Relationship between the senior economist and Language Services officials deteriorated, and the senior economist resigned from the assignment in mid-2000, citing inadequate support. ### Performance appraisals and internal divergences (1996–2000) - Mr. “F” uniformly received “1” and “2” performance ratings throughout his Fund career prior to 2000, and on the senior economist’s recommendation Mr. “F” received a “1” performance rating for 2000. - The 2000 Annual Performance Review (APR) contained criticisms not evident in 1996–1999 APRs: - Indicated Mr. “F” “bears some responsibility in the fact that team spirit and open communication were still lacking in the [“Language 1”] Section last year.” - Recommended “training will be needed to enhance his DTP [Desk Top Publishing] skills and his supervisory skills, his ability to handle stress, and most importantly to bring his written English skills up to Fund standards.” - Warned “poor writing and communication skills will remain a serious handicap in his career development.” ### Reorganization planning and rationale (Jan–Jun 2001) - By January 2001, after departures of the senior economist and the Section Chief, TGS and HRD pursued reorganization to “permanently solve the long-standing problems of the [“Language 1”] Section.” - January 2001 proposal: - Combine three small language Sections, including “Language 1,” into a single Division to achieve “economies of scale” and reduce duplication in the Translation Coordination Assistant (TCA) function. - Eliminate the [“Language 1”] Section TCA position and consolidate TPA/DTP and proofreader positions into a single position, with the expectation that “it is unlikely that any of the current incumbents in the [“Language 1”] Section would have the range of skills required” and a new person would need to be hired. - Redeploy “saved” positions as the new division chief and the new divisional TCA, and operate budget-neutrally. - Emphasized rebuilding the Section “without those staff members who have been at the heart of the Section’s continuous problems for many years under different supervisors.” - By March 2001, a broader “Phase 2 Reorganization” of TGS was being planned to “dissolv[e] a layer of management overhead in the Bureaus and reshaping/redeploying functions.” - June 2001 revised proposal: - Merge smaller language Sections into pre-existing Divisions rather than creating a new Division. - Repeat that the restructuring offered an opportunity to solve the long-standing personnel problems in the [“Language 1”] Section and suggested rebuilding the Section “without those staff members who have been at the heart of its continuous problems for many years.” - Specifically proposed that, following integration into the “Languages 1 & 2” Division, the TCA position held by Mr. “F” would be abolished “immediately.” ### Approval, implementation, timing, and health considerations (Jul–Oct 2001) - The June 2001 proposal received the Deputy Managing Director’s approval in July 2001. - The merger creating the “Languages 1 & 2” Division took effect August 1, 2001. - Full implementation of the restructuring was delayed until October 2001 due to concerns about Mr. “F”’s health: - Counseling and Consultation Service provided counseling between May and end-September 2001 (and for a period in 1995–1996) for work-related stress. - Mr. “F” perceived work being taken away from him and “not really felt support in that office for a long time,” and expressed concerns about “differences, both personal and religious differences in the office.” - In mid-summer 2001 Mr. “F”’s emotional health declined and he was placed on sick leave for a month. - On October 18, 2001 the Division Chief informed the TGS Advisor that he was ready to proceed with abolition of Applicant’s position and that of another support position. - Recommendations for staffing reconfiguration included: - Redefinition of the Translation Editorial Officer at A10 as a TP/PA position at A7. - Retention of the incumbent TPA (Grade A6) in the team, citing development in DTP and successful proofreading assignments. - Reallocation of Mr. “F”’s TCA duties to the two TCAs who had previously served the “Language 2” sector. - The TGS Advisor forwarded recommendations with approval to the TGS Assistant Director on October 22, 2001; the Assistant Director sought HRD Director and TGS Director approval on October 23, 2001. ### Abolition, vacancies, redeployment, and timelines (Oct 2001–Feb 2002) - A total of three positions in the “Languages 1 & 2” Division were abolished in October 2001. - Within the reorganized structure, the “Language 1” Section retained two support positions: a new Text Processing/Proofreading Assistant (“TP/PA”) position and a Text Processing Assistant (“TPA”) position. - The incumbent TPA was appointed to the TP/PA job following a vacancy announcement in February 2002 which specified a qualified internal candidate; the vacated TPA position was filled through external recruitment. - The TCA duties earlier performed by Mr. “F” were to be reallocated to the two existing TCAs from the “Language 2” sector. ### Notice, reassignment period, separation benefits, and separation date (Oct 2001–Jul 31, 2004) - Applicant received official notice of abolition of position on October 25, 2001, effective November 1, 2001; he had been informed of the decision in a meeting on October 24, 2001. - The notice explained the decision as part of adjusting resources to changing requirements in “word processing, desk top publishing, proofreading, and translation editorial and coordination services.” - The notice referred Mr. “F” to a Human Resources Officer for “reassignment assistance, training, career counseling, outplacement assistance and other benefits the Fund can offer you in this connection.” - Administrative arrangements confirmed by letter dated January 16, 2002 included: - Pursuant to GAO No. 16, a six-month reassignment period of November 1, 2001–April 30, 2002. - If reassignment efforts during that period were unsuccessful, an extended notice period of 120 days followed by the maximum 22.5 months of separation leave at full pay based upon Applicant’s years of service. - It is not disputed that these benefits were received by Mr. “F” and that he was separated from service effective July 31, 2004. *IMF Administrative Tribunal reports, Judgment no. 2005-1 (Mr. “F”) — narrative covering 1998–2004 reorganization, assessments, and position abolition* ### 38. On February 21, 2002, pursuant to GAO No. 31, Rev. 3 (November 1, ### imfat-4 - 38. On February 21, 2002, pursuant to GAO No. 31, Rev. 3 (November 1, ### Administrative review process and timeline - On February 21, 2002, pursuant to GAO No. 31, Rev. 3 (November 1, 1995), Section 6.02, Applicant through counsel sought administrative review by his department head, i.e. the Director of TGS. This request was later transferred to the Human Resources Director. - GAO No. 31, Rev. 3 (November 1, 1995) excerpts: - Section 6.02: Requests for review of decisions pertaining to a staff member’s work or career must be submitted in writing to the Department Head or designee within six months after the challenged decision was made or communicated; the Department Head or designee shall have 15 days to respond in writing. - Section 6.04: If dissatisfied with the response or if no response is received within 15 days, the staff member may request in writing a review by the Director of Administration within 30 days after the response or lapse of the response deadline. - On April 11, 2002, Human Resources Department confirmed review arrangements on “two tracks”: the “technical” aspects of the abolition would be considered internally by HRD and charges of discrimination, retaliation and harassment would be investigated by an outside consultant; terms of reference for the consultant were attached to that letter. - Applicant cooperated with the consultant; after exhaustion of administrative review he and counsel met with the consultant to discuss findings, but a copy of the consultant’s Report was not provided to Applicant. - Applicant alleged he was “lull[ed] . . . into an inactive pursuit of his Grievance,” that the investigation was not objective because the consultant had sought regular employment with the Fund, and later sought production of the consultant’s Report in both the Grievance Committee and the Administrative Tribunal. - The Tribunal concluded Applicant sustained no prejudice from the consultant’s appointment circumstances or from non-provision of the Report. - On August 8, 2002, the Director of Human Resources rendered her decision, relying on internal and consultant investigations, concluding: - TGS acted properly and within Fund rules in deciding to abolish Mr. “F”’s position and separate him from service. - Neither these decisions nor Mr. “F”’s career were adversely affected by discrimination, harassment, or retaliation. - Applicant filed a Grievance with the Fund’s Grievance Committee on October 3, 2002; the Committee’s Recommendation and Report of July 31, 2003 recommended denial of the Grievance for failure to show nexus between alleged religious intolerance and the TGS reorganization or that the abolition decision was arbitrary, capricious, discriminatory, or procedurally defective in a manner which substantially affected the outcome. - By letter of August 26, 2003, the Deputy Managing Director notified Applicant that Fund management accepted the Committee’s recommendation. - On November 20, 2003, Mr. “F” filed his Application with the Administrative Tribunal. ### Investigations, findings, and Tribunal treatment of the consultant report - HRD arranged two-track review: internal technical review and external consultant investigation of discrimination, retaliation, and harassment allegations. - Applicant cooperated and met with the consultant after administrative review; consultant’s Report was not provided to Applicant. - Applicant contended the consultant sought regular employment with the Fund, undermining objectivity, and alleged being lulled into inactivity while Respondent prepared litigation defense. - Tribunal, after considering the consultant’s appointment and Report, concluded Applicant sustained no prejudice from these matters. ### Parties’ principal contentions — Applicant - Applicant’s principal contentions (summarized): 1. The decision to abolish Applicant’s position and terminate employment was motivated by discrimination on religious grounds and culminated a history of discrimination; abolition improperly motivated to resolve personnel problems grounded in religious intolerance. 2. Applicant experienced a hostile and discriminatory work environment in which co-workers of the majority religion resented his authority; religious symbols were placed as deliberate provocation while his religious expression was not tolerated. 3. Applicant repeatedly raised religious prejudice and harassment to management, but management failed to investigate. 4. Applicant suffered mentally and physically due to management’s conduct. 5. Applicant’s functions were not actually abolished but redistributed to two positions at levels A6 and A7; redundancy did not arise from skills mismatch, abolition of functions, or budget reduction. 6. Applicant’s position embraced functions beyond that of a TCA, with no material difference between old and new positions; the TP/PA and TPA positions required skills Applicant used as TCA and back-up TPA; Applicant was more than qualified. 7. It was not credible that remaining TCAs could perform Applicant’s former duties without knowledge of “Language 1.” 8. Applicant’s performance was not at issue; he always performed at a fully satisfactory level. 9. Respondent failed to give Applicant appropriate advance notice of the abolition when he could have raised relevant issues. 10. No genuine efforts were made to find an alternative position in the Fund; Applicant was not offered or given opportunity to compete for either the TP/PA or TPA position. 11. Relief sought: rescission of the abolition decision or a “directed settlement protecting his economic security on the basis of a pension equal to what he would have had at normal retirement age” and such other relief as adjudged. ### Parties’ principal contentions — Respondent - Respondent’s principal contentions (summarized): 1. Decisions to abolish positions in Language Services were for legitimate, business-related reasons to consolidate functions and redeploy positions where increased staffing was needed. 2. Applicant’s Section traditionally had insufficient work to justify a full-time TCA position. 3. Applicant’s TCA duties were mainly administrative and did not require language skills other than English; duties were genuinely reassigned to two other TCAs from the “Language 2” side of the merged division. 4. There were material differences between Mr. “F”’s abolished TCA position and the new TP/PA position: TP/PA does not involve TCA administrative tasks, requires proofreading and editing responsibilities of the abolished TEO position, and requires desk top publishing skills as a primary responsibility. 5. Applicant lacked qualifications required for the new TP/PA position. 6. Applicant failed to show religious discrimination affected his career or played a role in the abolition decision. 7. The abolition decisions did not disproportionately impact a single religious group; no demonstrable link between alleged prejudices of co-workers and TGS senior managers who made abolition decisions; no witness corroborated Applicant’s belief he was targeted by religious discrimination. 8. While isolated derogatory references to Applicant’s religion occurred over more than twenty years, supervisors who became aware dealt with them appropriately and Applicant’s career did not suffer consequences from religious bias. 9. Applicant contributed to problems with colleagues; problems were work-related. 10. Applicant failed to show procedural flaws in the abolition or separation process; process was consistent with applicable rules. 11. Fund satisfied obligations under GAO No. 16 to assist in finding alternative employment; Applicant did not seriously pursue offered assistance and passed up opportunity to compete for the TP/PA position; Applicant was not qualified for the TPA position filled by an external candidate. ### Legal standard and issues considered by the Tribunal - The abolition of a post is an individual managerial decision subject to review only for abuse of discretion: review available where decision is arbitrary, discriminatory, improperly motivated, based on error of law or fact, or carried out in violation of fair and reasonable procedures. - IMFAT jurisprudence invokes the Commentary on the Statute standard: discretionary decisions can be overturned only if shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. - The Tribunal identified issues for consideration: 1. Whether the abolition decision was based on an error of law or fact, i.e. consistent with GAO No. 16. 2. Whether the decision was improperly motivated. 3. Whether the decision was discriminatory because of Applicant’s religion. 4. Whether Applicant was subjected to a hostile work environment during his career. 5. Whether the abolition decision was carried out in violation of fair and reasonable procedures. ### GAO No. 16 requirements and the key legal test - GAO No. 16, Rev. 5 (August 8, 1990), Section 13 provisions (quoted): - 13.01 General: A staff member may be separated in the event of abolition of position when position is redesigned to meet institutional needs and the incumbent is no longer qualified; efforts shall be made over not less than six months to reassign consistent with qualifications; appropriate training shall be provided if it will facilitate placement; if efforts fail, appointment shall be terminated. Consideration shall be given to performance record, seniority, and length of service. - 13.02 Notice: Separated staff member entitled to 60 calendar days’ notice; Director of Administration may extend up to 120 calendar days; may excuse reporting for duty and place on administrative leave with pay during notice. - 13.03 Resettlement Benefits: Eligible for resettlement benefits; minimum period of service specified in GAO No. 8 shall not apply. - 13.04 Payment from Separation Benefits Fund: Separation payment in accordance with Section 4.06. - Essential legal requirement: position must be abolished or redesigned to meet institutional needs and the incumbent no longer qualified. ### Test applied for whether position was abolished or redesigned to meet institutional needs - International administrative jurisprudence indicates the test is whether there are material differences between the old position and the new positions created. - Precedent summaries cited: - Arellano (No. 2) v. IBRD, WBAT Decision No. 161 (1997): comparison of old position with new positions to determine if positions are sufficiently different. - Brannigan v. IBRD, WBAT Decision No. 165 (1997): differences must be ones of substance; need for clear material difference between the new position and the position made redundant. *IMF Administrative Tribunal Reports, Vol. IV — Judgment no. 2005-1 (Mr. "F")* ### 24. In the present case, EXT was indeed subject to a process of reorganiza- ### Judgment no. 2005-1 (Mr. "F") ### Reorganization and materiality of changes - EXT underwent a reorganization to provide a new approach to media relations and to adjust to the introduction of new technologies; this involved separation of some existing staff and recruitment of new staff. - The Tribunal found that the changes effected in the Applicant’s position were not material. - Comparison of the Senior Public Information Officer position (prior to redundancy) with the External Affairs Counsellor and other new positions showed many substantially identical responsibilities, particularly contact and liaison with the media. - The Bank’s emphasis on familiarity with new broadcasting technologies (television) was not shown to extend beyond requirements already entailed by the Applicant’s former duties of dealing with television and radio broadcasters and journalists. - Transfer of certain functions (e.g., production of the Daily Development News to Paris) was not significant because: - the assignment had only recently been added as an ad hoc task; - part of the production remained in Washington; - the Applicant had devoted only a limited proportion of his time to that task. - Addition of a foreign language ability in connection with the Daily Development News did not significantly change the content of the Applicant’s position. - Elimination of responsibility to liaise with the Vice President and reassignment of specific minor tasks did not change the essence of the Senior Public Information Officer’s work. ### Duties of Mr. "F" as TCA (text, administration, and production responsibilities) - Applicant’s Annual Performance Review for 1/1/2000 to 12/31/2000 lists TCA responsibilities: - receipt and distribution of job requests to Section staff; - monitoring and follow up with outside contractors; - dispatch of finished jobs after completing relevant database entries; - producing statistical reports and word count statistics for budgetary purposes; - collecting and submitting daily attendance information and time reports, verifying them and submitting them to the Section Chief; - ensuring availability of adequate supplies for the Section; - providing transcription support for important documents such as the World Economic Outlook (“WEO”) as part of text processing duties. - There was factual dispute over the extent of Applicant’s back-up text processing responsibilities; some supervisors reported a significant portion involved text processing. - The senior economist testified Applicant’s desktop publishing work was impressive and that he was the main player in successful in-house production of two large publications using such techniques. ### Nature and requirements of the redesigned positions (TP/PA and TPA) - Text Processing/Proofreading Assistant (“TP/PA”) (Vacancy Announcement 2002) required: - considerable desktop publishing skills, particularly for in-house production of the “Language 1” WEO; - typing, transcribing, formatting a wide variety of technical and specialized “Language 1” documents and publications; - performing full range of desktop publishing functions; - proofreading and editing final translated documents against drafts or the original to verify conformity to “Language 1” spelling, syntax and grammatical practice and completeness and consistency in language and format. - TP/PA required “Language 1” as a mother tongue, excellent command of English, and preferably some other languages; proficiency in Quark Xpress; familiarity with the Fund’s style and form; ability to keep abreast of technical innovations in office automation; state-of-the-art desktop publishing skills; ability to train and supervise Text Processing Assistants (“TPAs”). - Text Processing Assistant (“TPA”) (one grade below TP/PA) required: - preparation of “Language 1” documents in final form (including tabular material, equations, charts) that did not require formal proofreading; - full proficiency in a wide range of desktop publishing functions; - thorough familiarity with state of the art in desktop publishing and Fund style and practice; - checking accuracy of language, grammar, spelling, and consistency in text and tables. - Division Chief described TCA as essentially a data management job with high communications content; TCA is central point for receipt, distribution, and electronic dispatch of jobs. TPA described as a pure text processing job requiring thorough conversance with latest technologies and desktop publishing programs and an additional language element of proofreading in “Language 1”. ### Tribunal finding on material differences and qualifications - The Tribunal concluded the TP/PA position involved responsibilities materially different from, and more demanding than, Applicant’s TCA duties, particularly requiring an excellent aptitude in English not possessed by Applicant. - The Fund advanced justifications for restructuring of Language Services: - redeployment to areas with growing need; - alignment of positions within the newly formed “Languages 1 & 2” Division parallel to other Language Divisions; - economies of scale by reducing number of TCAs after merging smaller Language Sections into pre-existing Divisions; - insufficient TCA responsibilities in “Language 1” Section to occupy a TCA full-time. - The January 2001 restructuring plan proposed combining three small Language Sections into one Division and noted “economies of scale would be achieved at the level of the TCA.” The plan was designed to be budget neutral, with abolished positions redeployed to areas with increased workload. - The Tribunal considered the Fund’s reasons credible and sufficient to justify abolition of Mr. “F”’s position. - On the second prong of GAO No. 16, Section 13 (applicant not qualified for redesigned position), testimony and evidence considered: - TGS Assistant Director and TGS Advisor: the merged Division required stronger oral and written English communication and the capacity to handle complex interaction with multiple languages, freelancers, and requesters; concerns that Applicant lacked the required communication skills in English and would not meet increased demands. - For TP/PA selection, a practical test using a previous WEO version was administered; Applicant produced only one page versus another staff member whose output, though not perfect, showed sufficient capability; Fund management selected the other staff member for TP/PA based on test results and observed progress in desktop publishing skills. - Fund submitted Applicant lacked: “an excellent command of English,” proficiency “in the use of Quark Xpress,” and ability to prepare documents in final form “in accordance with IMF norms and style and format guidelines for publications.” Fund relied on written appraisal of the computer systems officer and testimony of an earlier supervisor noting earlier WEO production (1991) did not require current sophisticated software/hardware. - Applicant contested the credibility of the test and relied on prior praise and evidence of having produced major “Language 1” documents, including earlier congratulatory memoranda and senior economist testimony. - The Tribunal found the Fund’s position persuasive and concluded Applicant was not qualified for the redesigned TP/PA position. - The Tribunal noted managerial discretion with respect to assessment of an employee’s qualifications and abilities, quoting the Commentary on the Statute: - “This principle is particularly significant with respect to decisions which involve an assessment of an employee’s qualifications and abilities, such as promotion decisions and dismissals for unsatisfactory performance. In this regard, administrative tribunals have emphasized that the determination of the adequacy of professional qualifications is a managerial, and not a judicial, responsibility.” (Report of the Executive Board, p. 19.) ### Precedent and standards for legitimate restructuring - ILOAT precedent: international organizations may undertake restructuring to achieve greater effectiveness or savings and regroup functions and make staff reductions, but job abolitions must be justified by real needs and not immediately followed by creation of equivalent posts (In re Mrs. A.M.I., ILOAT Judgment No. 2156 (2002), Consideration 8). - WBAT precedent (Njovens v. IBRD, WBAT Decision No. 294 (2003)) affirmed that reorganization may be a genuine exercise of managerial discretion where the reorganization is properly motivated and documented and not a pretext to terminate the Applicant. *Judgment no. 2005-1 (Mr. "F"), IMF Administrative Tribunal Reports, Vol. IV* ### 2. Was the abolition of Applicant’s position improperly motivated? ### 2. Was the abolition of Applicant’s position improperly motivated? ### Jurisprudential standards on redundancy and improper motive - Tribunal cautions that a finding of redundancy must turn on the content of the position being so redefined that its previous occupant is no longer qualified to discharge its responsibilities (Jassal v. IBRD, WBAT Decision No. 100 (1991), para. 31). - Unsatisfactory performance prior to a reorganization cannot alone furnish a basis for terminating service on the ground of redundancy; using redundancy to avoid Staff Rule 7.01 protections would constitute détournement de pouvoir (Jassal, para. 31). - “Care is needed in such an exercise since the redundancy provisions may not be used to deal with unsatisfactory performance” (Harou v. IBRD, WBAT Decision No. 273 (2002), para. 37). - Managers are advised to resort to redundancy only as “the last option” and redundancy is “not a substitute for managing performance” (Marchesini v. IBRD, WBAT Decision No. 260 (2002), para. 54). - Performance or skills may be taken into account when selecting who is rendered redundant, but redundancy must not be used to deal with unsatisfactory performance (Taborga v. IBRD, WBAT Decision No. 297 (2003), para. 42; Hoezoo, Decision No. 181 [1997], para. 6). - Where a staff member is being evaluated for performance problems and is suddenly made redundant under paragraph 8.02(b), fairness and reasonableness requirements become more stringent and warrant heightened scrutiny (Njovens v. IBRD, WBAT Decision No. 294 (2003), paras. 38–39). - Requirements for valid redundancy under para. 8.02(d): - Implementation must observe fair and transparent procedures; discretion must be exercised for legitimate managerial considerations in “the interests of efficient administration” (del Campo v. IBRD, WBAT Decision No. 292 (2003), para. 49). - The issue is not whether an Applicant is performing satisfactorily but whether the basis for choosing a particular individual for redundancy is legitimate (del Campo, para. 50). - Performance as a comparative factor is about relative contribution to effective operations, not just minimum satisfactory performance (del Campo, paras. 51–52). - General principle: a decision may constitute an abuse if discretionary power is exercised for a purpose other than that for which it was granted; abolition motivated to terminate a particular person for misconduct or unsatisfactory performance has been considered improperly motivated. ### Application of standards to the Fund’s restructuring and Applicant’s allegation of improper motive - Applicant alleged the Fund’s management abolished his position to overcome “personnel problems” arising from religious intolerance, effectively terminating his position for that improper motive. - Draft restructuring documents state: - The proposed restructuring “would offer a unique opportunity to solve some long-standing personnel problems in the [‘Language 1’] Section.” - “[I]t is unlikely that any of the current incumbents in the [‘Language 1’] Section would have the range of skills required for such a ‘combined’ TPA/DTP/proofreader position, and a new person would therefore need to be hired.” - June, 21, 2001 proposal: “The purpose of this note is to inform you of the efforts under way to permanently resolve the long-standing problems of the [‘Language 1’] Section of the Bureau of Language Services, and to seek your approval for a plan of action involving this Section and other small language service units as part of the restructuring of TGS. . . . Against this background, we believe that the Section needs to be rebuilt without those staff members who have been at the heart of its continuous problems for many years under different supervisors.” - TGS Assistant Director testified at the Grievance Committee: “. . . incidentally, that was something we were going to achieve, but it was not the purpose of the reorganization, it was not to deal with personnel issues in that manner.” - Key question: whether the real purpose was resolving long-standing personnel problems rather than achieving institutional efficiency. - ILOAT precedent on dual motives (In re Mr. J. C., ILOAT Judgment No. 139 (1969)): - Suppression of a post is not tainted by abuse when it is designed to have a lasting effect in the interest of the service and at the same time terminates the appointment of a staff member whose services were unsatisfactory. - A suppression based on two grounds—one related to the person and the other to the interests of the service—can be justified if the second ground suffices in the circumstances. - Tribunal’s assessment: - Fund management consistently stated restructuring was motivated by desire to enhance efficiency of TGS Department. - Evidence, including communications among management, supports the Fund’s stated reasons and also shows the Fund saw restructuring as a means of overcoming persistent personnel conflicts in the “Language 1” Section. - The Tribunal found that the additional objective of addressing personnel conflicts does not deprive the restructuring of managerial legitimacy. ### Allegation of improper motive — findings - Applicant argued the restructuring’s “true reason” was to resolve personnel problems grounded in religious intolerance, eliminating his post as the remedy. - Tribunal recognized that improper motive requires a causal link between the alleged irregular motive and the contested decision. - Tribunal concluded: - While the Fund intended to use the restructuring to address the Section’s personnel conflicts, the restructuring also had legitimate institutional efficiency objectives. - The presence of the additional desideratum (resolving personnel conflicts) did not render the restructuring illegitimate or an abuse of discretion. ### Discrimination claim (religious grounds) — legal framework and relevance - Applicant’s related contention: abolition resulted from religious discrimination and a hostile work environment arising from religious harassment. - This is the IMFAT’s first case addressing an allegation that a staff member’s career was adversely affected by religious prejudice. - Nondiscrimination principle and internal law: - Rule N-2 provides: “N-2. Subject to Rule N-1 above, the employment, classification, promotion and assignment of persons on the staff of the Fund shall be made without discriminating against any person because of sex, race, creed, or nationality. Adopted as N-1 September 25, 1946, amended June 22, 1979.” - Article III of the Tribunal’s Statute requires application of the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review. - Fund’s Discrimination Policy (July 3, 2003) defines discrimination in the Fund as differences in treatment where the differentiation is not based on the Fund’s institutional needs and: - is made on the basis of personal characteristics such as age, creed, ethnicity, gender, nationality, race, or sexual orientation; - is unrelated to an employee’s work-related capabilities, qualifications and experience—this may include factors such as disabilities or medical conditions that do not prevent the employee from performing her or his duties; - is irrelevant to the application of Fund policies; and - has an adverse impact on the individual’s employment, successful job performance, career opportunities, compensation, or other terms and conditions of employment. - Discrimination can occur via a single adverse decision or through a pattern or cumulative effect including “creating or allowing a biased work environment that interferes with an individual’s work performance or otherwise adversely affects employment or career opportunities” and “the failure to provide fair and impartial treatment, even if through inaction, can have harmful effects on an employee’s career.” *Source: IMF Administrative Tribunal Reports, Judgment no. 2005-1 (Mr. "F"), section titled "2. Was the abolition of Applicant’s position improperly motivated?"* ### 85. Applicant testified during the Grievance Committee’s proceedings to ### 85. Applicant testified during the Grievance Committee’s proceedings to ### Incidents alleged by Applicant - Two co-workers told Applicant directly that if he did not convert to their religion they would make his life in the Section “miserable.” - Those same staff members allegedly refused to take direction from Applicant in the course of their work. - Applicant was told to remove a verse from a holy text from his work area. - Applicant was told to remove a religious symbol from his office key ring. - Applicant alleges staff members of the majority religious group displayed posters depicting their own holy sites with the purpose of provoking him. ### Testimony and responses from colleagues and supervisors - The senior economist testified that the allegedly provocative posters were placed during his period in the Section and that he had encouraged decoration to reflect the flavor of the region; he then noticed the decorations reflected the majority religion and insisted additional posters be placed to represent other religious groups. - The senior economist testified that he did not observe “any religious discrimination” against Mr. “F”. - The Division Chief testified that in the early 1990’s Mr. “F” had reported that he felt he was the object of religious intolerance. - The senior economist reported an incident in which two staff members made derogatory remarks about Mr. “F”’s religion, and stated: “I made it 100 percent clear that I’m not going to tolerate this.” He distributed copies of the Fund’s Code of Conduct to Section members. ### Applicant’s view of link between hostility and abolition of position - Applicant explained that co-workers “create problems for me as something usual to keep question mark on me about how they get the front office or Administration to fire me.” ### Respondent’s position - Respondent stated that “. . . the weight of the evidence shows that, while there may have been a couple of isolated instances over more than twenty years when some of Applicant’s colleagues alluded to his religion in derogatory terms, the supervisors who became aware of these incidents dealt with them appropriately and Applicant’s career suffered no consequences as a result of any alleged religious bias.” ### Tribunal questions and findings on discrimination and hostile work environment - Two questions posed by the Tribunal: - Was the decision to abolish the post motivated by religious discrimination? - Tribunal finding: “the answer is decidedly negative.” There is no evidence that decision-makers who abolished Mr. “F”’s position were motivated by religious discrimination. - Whether Applicant has been subjected to a pattern of words, behaviors, action or inaction the cumulative effect of which is to deprive the individual of fair and impartial treatment (Discrimination Policy, July 3, 2003, p. 4). - Tribunal reviews Fund policies and codes relevant to harassment and conduct: - Policy on Harassment (January 1995; Staff Bulletin No. 99/15 Harassment—Policy and Guidance to Staff, June 18, 1999): “Harassment is any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment.” - Policy on Harassment description of intimidation includes inter alia: - degrading public tirades by a supervisor or colleague; - deliberate insults related to a person’s personal or professional competence; - threatening or insulting comments, whether oral or written—including by e-mail; - deliberate desecration of religious and/or national symbols; and - malicious and unsubstantiated complaints of misconduct, including harassment, against other employees. - Discrimination Policy, p. 5: “Harassment, unfair treatment, abuse of power, and favoritism are also separate from discrimination, but they can all become discriminatory if they develop into a pattern and systematically address certain individuals or groups of individuals and have an impact on employees’ performance, development, career opportunities, and career progress.” - Code of Conduct (1998) excerpts: - “14. You should treat your colleagues, whether supervisors, peers, or subordinates, with courtesy and respect, without harassment, or physical or verbal abuse. You should at all times avoid behavior at the workplace that, although not rising to the level of harassment or abuse, may nonetheless create an atmosphere of hostility or intimidation.” - “15. In view of the international character of the Fund and the value that the Fund attaches to diversity, you are expected to act with tolerance, sensitivity, respect, and impartiality toward other persons’ cultures and backgrounds.” - Policy on Harassment para. 9: staff should exercise tolerance, sensitivity, and respect; harassment concerns both intent and effect: if an action is reasonably perceived as offensive or intimidating, it might be seen as harassment, whether intended or not. - Discrimination Policy, July 3, 2003, p. 7: employees should have reasonable grounds supported by documents and other evidence before making a discrimination complaint; the Fund will protect against retaliation but may discipline frivolous or malicious accusations. - Supervisory responsibilities: Policy on Harassment para. 18 expects supervisors to stop harassment; Code of Conduct para. 19 requires managers to make themselves available to staff to raise concerns in confidence and deal with situations impartially and sensitively. ### Evidence on Applicant’s conduct and Section atmosphere - Records show episodes where Mr. “F” displayed adversarial attitude, aggressive tone, personal attacks (mid-year review discussion in September 1995), and warnings about raising his voice and becoming verbally aggressive (November 2000), including that such conduct “is not acceptable conduct in the Fund, and any such conduct in the future would result in disciplinary action against you.” - Supervisors acknowledged the Section environment was “not proper” and agreed tensions had prevailed. - Tribunal conclusion on hostile work environment: - Evidence predominantly sustains that the Section suffered from an atmosphere of religious bigotry and malign personal relations among certain members, and that Mr. “F” in particular suffered accordingly. - No evidence that Fund supervisors took effective measures to correct the problem. The senior economist made some effort to rebuke expressions of religious hostility but the atmosphere persisted after his departure. - Tribunal finds there is ground to conclude Applicant suffered harassment as defined in the Fund’s Policy on Harassment, though Applicant may have contributed to the malign atmosphere by his own behavior. - Tribunal finds evidence that Applicant “felt, and had reason to feel, that he was the object of hostility on the part of certain of his colleagues because his religion was different from theirs.” - There is no evidence supervisors moved vigorously, or indeed moved at all, to investigate Mr. “F”’s complaints or to discipline staff members found to be the source of hostility. - Harassment had an adverse effect on Applicant’s work performance and perhaps health; the senior economist’s appointment to survey personnel problems did not absolve the Fund of responsibility for not addressing complaints adequately. - Harassment also appears to have had origins not of a religious kind; Applicant’s own deportment was at times offensive, combative and excessive but not such as to excuse the behavior of which he was the victim. ### Procedural question: adequacy of notice for abolition and separation - GAO No. 16, Section 13.02 provides: - “Section 13. Reduction in Strength, Abolition of Position or Change in Job Requirements . . . 13.02 Notice. A staff member separated under the provisions of Section 13.01 shall be entitled to 60 calendar days’ notice. However, the Director of Administration may extend this period up to 120 calendar days in order to allow the staff member a reasonable time, before his separation, to settle his affairs. The Director of Administration may also excuse a staff member from reporting for duty during part or all of the period of notice and place the staff member on administrative leave with pay during this period.” - Points of contention and practice: - The provision addresses notice once a stage of separation has been reached; it does not expressly address when a staff member is entitled to a specific notice period in advance of abolition. - Applicant contends the Fund violated GAO No. 16 by failing to give warning about the redundancy decision before it was taken so he could have raised relevant issues. - Applicant was informed of the abolition of his position effective November 1, 2001 during a meeting on October 24, 2001, followed by written confirmation on the next day. - The Fund’s view: the 60-day (or extended 120-day) notice period does not begin to run until the six-month reassignment period has expired; the period functions as notice of separation from service rather than of the abolition of position. The Fund granted Applicant the maximum extended notice period of 120 days. The Fund delayed informing Applicant of the decision for a few months while he was recovering from what was diagnosed to be work-related stress disorder. - Comparative tribunal jurisprudence cited: - Garcia-Mujica v. IBRD, WBAT Decision No. 192 (1998): basic guarantee of due process requires staff member be adequately informed “with all possible anticipation” of problems concerning career prospects; failure to provide timely information can deprive a staff member of an adequate opportunity to defend himself and can result in being declared redundant on very short notice. - Njovens v. IBRD, WBAT Decision No. 294 (2003): fairness and reasonableness dictate adequate information should be provided with “all possible anticipation,” especially when the institution is aware of likelihood of redundancy substantially in advance; absence of advance warning can inflict compensable damage. *IMF Administrative Tribunal Reports, Vol. IV; Judgment no. 2005-1 (Mr. "F")* ### 106. While the Fund’s interpretation of the Section 13.02 of GAO No. 16 is ### Judgment no. 2005-1 (Mr. "F") ### Fair and transparent procedures; notice and hearing - The Tribunal held that fair and transparent procedures require that a staff member whose position is abolished be given reasonable notice of that prospect and be able, when the decision is first conveyed, to set out reasons to contest the propriety or equity of the abolition decision. - The summary notice given to Mr. “F” was found "hardly adequate" for that purpose. - Conclusion: On the ground of inadequate notice, the Fund did not follow fair and reasonable procedures. ### Reassignment obligations under GAO No. 16, Section 13.01 - GAO No. 16, Section 13.01 (quoted): - "In the event that a staff member’s position is abolished, or the position is redesigned to meet institutional needs and he is no longer qualified to meet its requirements, efforts shall be made over a period of not less than six months to reassign him to another position consistent with his qualifications and the requirements of the Fund. During this period, the Fund shall also provide the staff member with appropriate training if such training will facilitate his placement in an alternate position. If all efforts to identify a reassignment fail, his appointment shall be terminated." - GAO No. 16 also requires efforts at reassignment in cases of reduction in strength, with consideration to performance record, seniority, and length of service. ### Parties' positions and factual record on efforts to reassign Mr. “F” - Applicant alleges limited contact: Human Resources Officer met with Applicant and his wife only twice during the six-month period; only once was an opening involving French language skills mentioned, which Applicant declined as not fitting his skills. - Respondent (the Fund) contends: - Applicant did not seriously pursue positions, testing, training, or outplacement assistance offered. - The duty to assist is a duty to assist; the staff member bears prime responsibility to seek opportunities, pursue training, and take prerequisite tests. - All vacancies were posted on the internal website; staff had access to current listings. - Applicant never expressed interest in being considered for the TP/PA or TPA positions and pursued other possibilities (e.g., opening a business). - Human Resources Officer testimony before the Grievance Committee stated she met Applicant and his wife three or four times, spoke several additional times by telephone, intervened on Applicant’s behalf regarding an IMF Institute opportunity, drew attention to a vacant data management assistant position in TGS, and helped obtain a "Language 1" typing certification for an outside opportunity. ### Assessment of efforts and comparative tribunal jurisprudence - Tribunal cited prior decisions emphasizing that international organizations must make genuine, serious, and proactive efforts to reassign redundant staff (e.g., ILOAT Decision No. 269 (1976); Arellano (No. 2) v. IBRD, WBAT Decision No. 161 (1997); Marchesini v. IBRD, WBAT Decision No. 260 (2002); ILOAT Decision No. 2294 (2004)). - Key jurisprudential points summarized: - Obligation is to try genuinely to find alternative positions for which staff are qualified; it is an obligation to make an effort, not to ensure success. - Organizations must undertake appropriate enquiries about vacant posts and explain reasons why a staff member is unsuitable before terminating appointment. - Human Resources Officers may be expected to actively assist, arrange interviews, submit applications on behalf of applicants, and use job search centers and posting systems. - Tribunal's assessment of the record: Evidence is not clear-cut; both the Fund and Mr. “F” bore fault for not energetically pursuing reassignment possibilities. The Tribunal did not feel justified in awarding compensation on the reassignment ground. ### Findings on other misconduct and procedural failings - The Tribunal concluded: - The abolition of Mr. “F”’s post, in the context of the reorganization of the Department of Technology and General Services, was an act of managerial discretion and not subject to reconsideration on abuse of right or similar grounds. - Mr. “F” was the object of expression of religious intolerance and was subjected to a hostile work environment. - The Fund failed to take effective measures to deal with the religious intolerance and harassment directed at Mr. “F”. - The Fund failed to give Mr. “F” reasonable notice of the abolition of his position. ### Remedies and compensation - Article XIV, Section 1 of the Statute (quoted) empowers the Tribunal to prescribe rescission and other measures, monetary or otherwise, to correct effects of an unlawful decision. - Applicant sought rescission of the redundancy decision or a directed settlement protecting economic security (pension equal to what he would have had at normal retirement age) and other relief. - Tribunal conclusions on remedies: - The Tribunal sustained the abolition decision (no abuse of discretion). - The Tribunal nevertheless found the Fund liable in part for procedural irregularity and for failure to address religious intolerance and harassment. - The Tribunal awarded compensation for two grounds: - Failure to take effective measures in response to religious intolerance and workplace harassment; and - Failure to give reasonable notice of the abolition of his post. - Award: - Mr. “F” is awarded the sum of $100,000. ### Costs - Article XIV, Section 4 of the Statute (quoted) permits the Tribunal to order that reasonable costs incurred by the applicant, including counsel fees, be wholly or partially borne by the Fund. - The Tribunal indicated reasonable legal costs may be awarded and that costs deriving from representation in administrative review proceedings antecedent to the Tribunal’s review fall within the Tribunal’s remedial authority. - The Fund will pay Applicant the reasonable costs of his legal representation, in an amount to be assessed by the Tribunal following further submissions of the parties. ### Final decision and formalities - The Administrative Tribunal of the International Monetary Fund unanimously decided: 1. The abolition of Mr. “F”’s post was managerial discretion not to be reconsidered for abuse of right. 2. Mr. “F” is entitled to financial compensation for the Fund’s failures (a) to take effective measures regarding religious intolerance and workplace harassment; and (b) to give reasonable notice of post abolition. 3. Mr. “F” is awarded $100,000. 4. The Fund shall pay reasonable legal costs of Applicant, amount to be assessed following further submissions. - Signatures and date: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Celia Goldman, Registrar. Washington, D.C. March 18, 2005. *IMF Administrative Tribunal Judgment no. 2005-1 (Mr. "F"), Washington, D.C., March 18, 2005.* ### 2. Ms. “W” contests the decision of the former Director of Administra- ### 2. Ms. “W” contests the decision of the former Director of Administration approving the conclusions of a review team constituted under the Discrimination Review Exercise (DRE) ### Background and substantive claims - Applicant (Ms. “W”) initiated a DRE claim alleging that her salary and grade level were adversely affected by gender discrimination and sought a pay increase and a promotion. - The DRE review team concluded that Applicant had not been discriminated against in her career with the Fund but found that: - Applicant’s initial departmental assignment “may have hampered her career progression”; and - At various points “skill deficits” may have been “magnified.” - The Director of Administration ratified the DRE team’s conclusions, approved: - a within-grade salary increase; and - career development assistance to strengthen Applicant’s ability to compete for positions at the next grade level; - but denied Applicant’s request for promotion. - In her Application to the Administrative Tribunal, Applicant contends: - the DRE investigation was procedurally defective; - the Director of Administration’s conclusion that Ms. “W”’s career had not been affected by gender discrimination was not supported by the evidence; - the Fund did not demonstrate that non-discriminatory factors explained Applicant’s allegedly slower career progression as compared with male colleagues; - the Fund has not implemented prospective career development measures approved as part of the remedial action; - the Fund improperly used the DRE report to influence the denial of a promotion; and - the Fund has continued to discriminate against her on the basis of gender. - Respondent (the Fund) maintains: - the DRE process applied in Applicant’s case was an appropriate exercise of the Fund’s discretion; - Ms. “W”’s claim was reviewed impartially and in accordance with established DRE procedures; - conclusions drawn by the review team and ratified by the Director of Administration were reasonably supported by the evidence; - claims regarding failure to implement remedial action, improper use of the DRE report in denying promotion, and continuing discrimination were not exhausted administratively and, in any event, are without merit; and - the Tribunal should deny Ms. “W”’s Application. ### Procedural history and Tribunal handling - Key dates: - Applicant filed an Application with the Administrative Tribunal on November 19, 2003. - The Application was transmitted to Respondent on December 10, 2003. - On January 6, 2004, pursuant to Rule XIV, para. 4, the Registrar issued a summary of the Application within the Fund. - Respondent filed its Answer on January 26, 2004. - Applicant submitted her Reply on March 1, 2004. - The Fund’s Rejoinder was filed on April 1, 2004. - The Administrative Tribunal decided, meeting in session, on July 28, 2005, to deny each of Applicant’s requests for production of documents (as summarized below). - Tribunal procedural rulings and authority: - Pursuant to Rule VII, para. 6, the Registrar advised Applicant of deficiencies in the Application; Applicant corrected them within the indicated fifteen-day period and the Application is considered filed on the original date. - The Tribunal determined that oral proceedings were not necessary for disposition of the case. - The Tribunal relied on the record generated by the Fund’s Grievance Committee and has held it is “. . . authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” (citing IMFAT Judgment No. 1996-1, para. 17). ### Requests for production of documents and Tribunal rulings - Applicant’s document requests (as filed in the Application): 1. An unredacted copy of Notes made by the Fund staff member who served together with an external consultant to form the DRE review team; 2. Any additional documents resulting from the DRE review of Applicant’s case that were not earlier supplied to Applicant; 3. Comparator data for male senior economists; and 4. Data on the outcome of the DRE. - Tribunal decisions (meeting in session on July 28, 2005) denied each request. Reasons and key findings: - Request 1 — Unredacted “Notes on [Ms. ‘W’]”: - The redacted copy provided omitted the names of interviewees. - The Fund disclosed the names of nine staff members interviewed for the DRE review in Grievance proceedings; several testified before the Grievance Committee. - Applicant conceded that “. . . most of the persons interviewed for [the Notes] have been identified and have testified on the statements made.” - The Tribunal found Respondent’s approach to disclosure of identities inconsistent and rejected privacy as an insurmountable objection. - The Tribunal denied production on the ground that disclosure “would not be of probative value to the Applicant, given the entire record” available in administrative review and before the Tribunal (citing IMFAT Judgment No. 2005-1, para. 15). - Request 2 — Any additional DRE documents: - Respondent represented that all documents pertaining to the DRE review were turned over to Applicant’s counsel in discovery during administrative proceedings. - Applicant proffered no evidence that additional responsive documents existed in the Fund’s possession. - The Tribunal denied the request because Applicant did not show she had been denied access to documents by the Fund (Rule XVII, para. 1). - Request 3 — Comparator data for male senior economists: - Applicant described the request as comparative data for male senior economists to show progression to levels A15 and higher, or at minimum all male economists in Applicant’s cohort (entered 1980–1984). - Applicant challenged the Fund’s comparator group used in remedying her case, which encompassed only senior economist staff at Grade A14 in the age group 50–52. - Respondent maintained statistical information was used only to determine the amount of a salary adjustment; qualitative evidence guided grade-level determinations. - The Tribunal recognized this request raised whether the DRE’s methodological use of qualitative and quantitative evidence constituted an abuse of discretion. ### DRE methodology, role of statistics, and Tribunal legal framing - The DRE process: - The DRE was a special, one-time inquiry initiated by the Fund in the late 1990s to investigate alleged discrimination cases. - The Fund designed the DRE as an alternative dispute resolution mechanism with “flexibility” and “a considerable degree of latitude for the review teams” (citing IMFAT Judgment No. 2002-2, paras. 49, 55). - The Fund deliberated on the role of statistical evidence in the DRE and, after seeking assessment from expert reviewers, concluded aggregate analysis could not demonstrate conclusively whether discrimination occurred in an individual case and that such analysis should not be applied in a “mechanical way” to remedy salary and grade disparities. - Tribunal conclusions on methodology: - The Tribunal concluded Respondent’s decision to base the DRE review of individual cases on qualitative as well as statistical factors was not arbitrary, capricious or discriminatory. - The Tribunal framed the legal question before it as whether, in fashioning an ad hoc alternative dispute resolution mechanism to remedy past discrimination, the Fund could reasonably include qualitative as well as quantitative considerations — and concluded it could. - The Tribunal noted it was not being asked whether statistical analysis may prove discrimination in principle but whether the Fund could reasonably rely on qualitative as well as quantitative factors in the DRE. - Comparative jurisprudence: - The Tribunal observed the World Bank Administrative Tribunal has twice concluded that statistics alone cannot establish discrimination (Sebastian (No. 2), WBAT Decision No. 57 (1988), para. 34; Nunberg, WBAT Decision No. 245 (2001)). - In Nunberg, the WBAT rejected a claim seeking to use individual regression analysis to obtain a larger salary increase than that granted under a Bank-wide study and considered the extent to which an individual regression analysis would provide evidence of discrimination. ### Issues reserved for consideration - The Tribunal identified further questions for consideration in the case record (to be addressed in its judgment): - Whether Respondent reasonably applied qualitative considerations in shaping the remedies granted Applicant by: 1. concluding that promotion to the next grade level was not warranted; and 2. determining the extent of the salary adjustment granted. *Judgment No. 2005-2 (Ms. "W"), IMF Administrative Tribunal Reports, Vol. IV.* ### 24. Following the consideration of competing expert opinions, the WBAT ### 24. Following the consideration of competing expert opinions, the WBAT ### Tribunal conclusions on regression analysis and fairness - The WBAT in Nunberg concluded that “. . . it appears to the Tribunal that the regression analysis sought by the Applicant could be no more than a step in a complex process. . . . the outcome of that exercise could not determine finally what salary was fair and equitable for her personally.” (Para. 54.) - The WBAT held that it was “. . . unable to find that the Bank’s refusal to provide the material for a regression analysis was inconsistent with the principles of fairness and equity,” (para. 56). - The WBAT dismissed the application on the grounds that “. . . the Tribunal has been unable to make a specific finding of discrimination affecting the Applicant individually, after the 5% adjustment decided by the Bank, as neither the evidence specific to her situation nor the studies carried out by the Bank supports such a finding and there is no compelling case for applying the methodology proposed by her.” (Para. 58.) ### Grievance Committee position and relevance of statistical analysis - In its October 2, 2002 Order in Ms. “W”’s case, the Fund’s Grievance Committee concluded: “. . . the statistical regression analysis sought by Grievant is not relevant to establish discrimination in Grievant’s individual case,” and that the Committee “. . . agrees with the Fund that ‘the DRE was based on the reasonable conclusion that statistical analysis did not provide a sufficient or appropriate basis for making findings and fashioning remedies in individual cases.’” - On the Administrative Tribunal’s conclusion that Respondent’s decision to base the DRE review of individual cases on qualitative as well as statistical factors was not arbitrary, capricious or discriminatory, Applicant’s request for comparator data was denied as not relevant to the questions at issue in the case. (See supra, para. 21 and para. 26.) ### Applicant’s Request 4 — Data on DRE outcomes and Tribunal ruling - Applicant requested “. . . the correctly tabulated outcome of the DRE exercise for all 67 cases examined. . . . to demonstrate that there was disparate treatment of women in the DRE compared to men who were promoted at a rate of 95 percent. . . .” (Para. 27.) - Applicant created her own tabulation of outcomes, which differed from those in the “Report of the Consultants on the Discrimination Review.” (Para. 27.) - The Tribunal found that such data would neither prove conclusively that the DRE process in general was discriminatory nor that the process as applied in Applicant’s case was discriminatory. (Para. 28.) - The Grievance Committee drew the same conclusion in its Order of October 2, 2002. (Para. 28.) - The document request for DRE outcomes was denied on the ground that the requested information is not relevant to the questions at issue in the case. (Para. 29.) ### Factual background: Ms. “W”’s career highlights - Applicant began her career with the Fund on February 1, 1982 as an Economist at grade G (equivalent to A12) in “Department 1.” (Para. 31.) - Promotions and moves: - Promoted to Grade A13 in 1986. (Para. 31.) - Transferred to “Department 2” in 1989. (Para. 31.) - Moved to “Department 3” in 1992. (Para. 31.) - Promoted to Senior Economist at Grade A14 in 1995. (Para. 31.) - Transferred to “Department 4” in 2000. (Para. 31.) - Took up post of Fund Resident Representative in 2004 while continuing as Senior Economist at Grade A14. (Para. 31.) - Applicant served as a member of the Working Group on the Status of Women and received praise from its Chair for supervising the statistical analysis performed by outside consultants. (Para. 32.) ### The Discrimination Review Exercise (DRE): purpose and timing - The DRE was an exceptional, one-time inquiry open to cases brought to the Director of Administration between August 28 and September 30, 1996. (Para. 33.) - The DRE was initiated to investigate and remedy, through an alternative dispute resolution mechanism, instances of past discrimination that had adversely affected Fund staff careers. (Para. 33.) - The DRE sprang from studies following the 1992 Survey of Staff Views, including the May 1994 Working Group report “Equity and Excellence” and Pelerei’s July 1995 study “Discrimination in the Fund: A Study of the Nature, Extent, and Cause of Discrimination on the Basis of Race, Nationality, Religion and Age.” (Para. 34.) - The Managing Director’s December 1995 report emphasized instituting an alternative dispute resolution procedure as a simpler ad hoc forum for settling discrimination complaints. (Para. 35.) - Memoranda in early and mid-1996 signaled the Fund’s intention to appoint an independent panel with expert assistance to examine cases confidentially and reach conclusions on perceived discrimination affecting promotion or salary. (Para. 36.) ### DRE procedures, team composition, and constraints - The August 28, 1996 Memorandum from the Director of Administration outlined that reviews would draw on input from subordinates, peers, and supervisors; review career records; and may include meetings with employees and suggested remedial actions such as assignments, mobility, training, promotions, and salary adjustments. (Para. 37.) - The January 13, 1997 Memorandum described that reviews would be carried out by external consultants assisted by Fund staff, with consultants having expertise in discrimination, diversity, arbitration, and mediation. (Para. 38.) - The Special Advisor on Diversity counseled individuals regarding initial submissions but did not participate in the actual reviews; focus instead was on departmental diversity plans and systemic efforts. (Para. 39.) - The review teams would work in pairs (outside consultant and Fund staff), meet applicants and contacts, conduct statistical analysis where required, and recommend prospective remedies within existing personnel policies. (Para. 40.) ### DRE methodology and workload - The Consultants’ Report states: - Five review teams conducted the reviews, each including one outside consultant and one Fund staff member. (Para. 42.) - The five teams, the Fund’s Special Advisor on Diversity, and the Director of ADM formed a committee meeting regularly to ensure consistency. (Para. 42.) - Individual reviews included (1) an initial interview with the applicant; (2) interviews with authorized contacts (supervisors, subordinates, peers, and others); (3) statistical analysis where required; and (4) a feedback interview with the applicant. (Para. 42.) - During the course of the review, teams conducted approximately 600 contact interviews. (Para. 42.) - Outside consultants made final determinations regarding the merit of claims and suggested remedial action; remedies were limited by factors including: (1) promotion opportunities; (2) applicants’ current competitiveness for job openings; (3) budgetary constraints; (4) time-in-grade requirements; and (5) the promotion procedures of the review committees. (Para. 42.) ### DRE outcomes and distribution of findings - The consultants reported that the DRE review teams made recommendations for 67 of the 70 cases filed. (Para. 43.) - Indications of “unfair or uneven treatment” were identified in approximately half of these 67 cases. (Para. 43.) - The Consultants’ Report notes that the DRE was not designed to prove discrimination to a high legal standard and that indications varied, with only “a small number of cases—mainly involving starting salaries or salaries on transfer to a different career stream—[having] clear evidence of discrimination.” (Para. 43.) - The Consultants’ Report stated the distribution of primary factors linked to cases where unfair treatment was found: - 77 percent linked primarily to race/nationality. (Para. 43.) - 20 percent linked primarily to gender. (Para. 43.) - 3 percent linked primarily to age. (Para. 43.) - The Report also noted that age was often an important secondary factor limiting later-career advancement in cases hampered earlier by nationality, race, and/or gender considerations. (Para. 43.) *Judgment no. 2005-2 (Ms. "W"), IMF Administrative Tribunal Reports, Vol. IV.* ### 44. With respect to the use of promotion as a remedy, the consultants ### With respect to the use of promotion as a remedy, the consultants ### Summary of consultants’ findings on remedial outcomes - 35 candidates were considered as having an indication of unfair or uneven treatment. - Promotion as primary remedial outcome: - Occurred in 17 of these 35 cases. - In some of these 17 cases, the staff member was already in the process of obtaining a sought after promotion during the course of the discrimination review exercise and there was no support or intervention from management or ADM to help bring about the promotion. - In other cases, such promotions took place largely as a result of internal market forces but with some support provided by management or the ADM. - In yet other of these 17 cases, the promotion came about as a direct result of a specific decision taken by management and/or ADM outside the framework of the normal internal market. - Within-grade salary adjustment as primary remedial outcome: - Occurred in another 15 of the 35 cases in which some indications of uneven or unfair treatment were identified. - The within-grade-salary adjustment averaged 6.2 percent. - Combined outcomes and additional support: - In many of these 32 cases in which a promotion and/or within-grade-salary adjustment was a primary outcome, staff members also received (and in a number of cases are continuing to receive) support in the form of training, reassignments, coaching, and mentoring. - In three cases in which unfair or uneven treatment was identified, the remedial action did not involve a promotion or a within-grade-salary adjustment, but did include career development support of the types above. - Support provided where no indication of unfair or uneven treatment was found: - In 10 of the 32 cases in which no indication of unfair or uneven treatment was found, some form of supportive action such as training or reassignment nonetheless was being provided as an outcome of the review. ### Gender-disaggregated outcomes reported by the consultants - Number of discrimination cases reviewed by gender: - 37 men and 30 women. - Proportion with indications of unfair or uneven treatment: - 53 percent of the women. - 49 percent of the men. - Promotion as an outcome: - The table accompanying the Report indicates promotion was the primary remedy for 23 percent of women and for 27 percent of men. - Within-grade salary adjustments by gender: - A larger proportion of women (27 percent) received within-grade salary adjustments than men (19 percent). - The average size of the adjustment was larger for women (6.6 percent) than men (5.7 percent). - The Report comments that this reflected the fact that a relatively low starting salary for women accounted for a number of the cases of unfair treatment identified. ### Application of the DRE to the case of Ms. “W” — key facts and chronology - Applicant’s initial claim and statistical basis: - Applicant requested review under the DRE on September 24, 1996, grounded on statistical evidence from the Working Group on the Status of Women. - The regression measures a statistically significant adverse treatment of women economists compared to men, equal to 3.4 percent of women’s salaries on average. - Applicant’s substitution into the regression indicated she should have earned $91,992 in 1993 had she been treated the same as the average performing male economist in the Fund. - Applicant stated that, after adjusting for a recent promotion, anomalies of 1 grade and $11,000 still remained in her individual case. - DRE review team and meetings: - Review team appointed by the Fund consisted of an outside consultant (“external team member”) and an official of the Administration Department (“internal or Fund team member”). - The team held its initial meeting with Ms. “W” on May 14, 1997. - The team held a final meeting with Ms. “W” on April 21, 1998. - Methodology and presumption: - The Team made the beginning assumption that the Pelerei Study and the work of the Working Group established a rebuttable presumption of discrimination; the Team had to determine if there were reasons other than discrimination for her career trajectory. - Team findings on performance and treatment: - The Team found indications that Ms. “W” was treated differently from male colleagues, including that in her first Division she was “not given prime assignments” and that “Department 1” was known at the time as not having a good record for promoting women. - The Team identified a “skill deficit” in early Annual Performance Reports (APRs): strengths in quantitative work and computer expertise led to generating “mountains of data rather than on sharp analysis,” with insufficient focus on the “big picture.” - The Team found that this tendency attenuated after her transfer to “Department 3” and that there was no mention of this issue in APRs since the transfer. - During “Department 2,” Applicant was “viewed as possessing limited analytical skills” and “not viewed as competitive with her peers with respect of the breadth of skill required for Area Department work.” - In “Department 3,” her most recent assignment as of the DRE, Ms. “W” was regarded as demonstrating strong analysis; “Her work has been as good as 90% of the other Senior Economists in the Fund. She appears to have overcome at least some of the analytical shortcomings some saw in her work in the first years of her Fund career.” - The Team also noted she was “an extremely hard worker and an excellent team player.” - Team conclusion and recommended remedies: - The Team did not conclude that Ms. “W” had been discriminated against in her career; it held that her skill deficits were sufficient to overcome the presumption of discrimination. - The Team recommended: - A one-time salary increase of 6.5 percent, representing “. . . the difference in salary between Ms. [“W”]’s current salary and the average salary of economists in the 50-52 year old range”. - That she be provided with supervisory responsibilities to assess her management skills, and other assignments to develop and assess her writing skills. - Encouragement to apply for A15 vacancies if she did well, with support from ADM for her applications. - Administrative decisions and grievance timeline: - Director of Administration affirmed the review team’s conclusions and recommendations by memorandum dated May 21, 1998, stating the remedial action would include a 6.5 percent salary adjustment within Grade A14 effective May 1, 1998, and efforts to identify assignments to develop analytical, writing, and supervisory skills. - Applicant initially filed a Grievance with the Fund’s Grievance Committee on May 15, 1998. - Applicant filed another Grievance on July 20, 1998; a final Grievance was filed December 30, 1998. - Voluntary mediation was unsuccessful. - The Grievance Committee issued its Recommendation and Report on July 2, 2003, finding the review team’s investigation appeared thorough and concluding that Grievant’s pace of advancement was not based on discrimination but on her own shortcomings; the Committee found the method of arriving at the 6.5 percent remedy appeared “reasonably based.” - The Committee’s recommendation, including an ex gratia payment for legal fees, was accepted by Fund management on July 15, 2003. - The Grievance Committee later increased the amount it recommended for the ex gratia payment; management’s acceptance of this further recommendation was received by Applicant on August 20, 2003, and constituted management’s final determination as to the relief provided. - Procedural note on administrative-review channels: - The course of events reflects uncertainty as to the relationship between the DRE process and the administrative review procedures of GAO No. 31. - The Tribunal in Ms. “Y” ruled that the Director of Administration’s decision ratifying the recommendations of a DRE review team was a decision “taken directly” within the meaning of GAO No. 31, Rev. 3 (Grievance Committee), Section 6.06; such decisions may be contested in the Grievance Committee without additional review. - Article VI, Section 1 of the Tribunal’s Statute provides that an application challenging the legality of an individual decision shall not be admissible if filed more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision. *IMF Administrative Tribunal Reports, Vol. IV* ### 59. On November 19, 2003, Ms. “W” filed her Application with the Admin- ### Judgment no. 2005-2 (Ms. "W") ### Summary of Parties’ Principal Contentions - Applicant’s principal contentions (as summarized in her Application and Reply): 1. The DRE lacked due process protections and, as applied in the case of Ms. “W”, procedural defects had a material effect on the outcome of the review. The review team members were not qualified for their responsibilities. Members of the Fund staff who were involved in the review of Applicant’s claim were affected by conflicts of interest, and the role of the outside consultant was unduly constrained by these officials. 2. The DRE review of Applicant’s case must be held to the standard adopted by the review team, i.e. that earlier Fund studies such as that of the Working Group on the Status of Women established a “rebuttable presumption” of discrimination as to Applicant. 3. Using accepted statistical methods, Applicant has shown that she has been paid and graded at a lower level than the average male economist in the Fund, despite better-than-average performance. The DRE review of Applicant’s case failed to establish that factors other than discrimination resulted in Applicant’s slower career progression. 4. Additionally, the DRE review team expressly found that there had been disparate treatment between Ms. “W” and her male colleagues. 5. The claim of a skills deficit was without merit and was contradicted by the written record. Applicant has been praised for her hard work, initiative, in-depth analysis and policy work, and exceptional quantitative skills. 6. There was a clear bias in the review team’s approach, which did not focus on the elements of discrimination but rather on factors to rebut the apparent discrimination. The review team improperly relied upon oral assessments that contradicted the written record of Applicant’s performance. The review team thereby wrongly characterized Applicant as having a “forest-for-the-trees” problem, distorting the review of her case and leading to the unsupported conclusion that performance factors explained the disparity in Applicant’s grade and salary vis-à-vis male economists. 7. The Director of Administration took a decision to ratify the review team’s findings on the basis of incorrect information and analysis. The conclusions of the DRE team were not “reasonably supported by evidence.” 8. Applicant’s career was adversely affected by discrimination and the Tribunal has jurisdiction to make such a finding. 9. Respondent used a biased statistical analysis, based on an inappropriate group of comparators, to determine the remedy for Applicant as a result of the DRE process. At the same time, Respondent refused to provide statistical information requested by Applicant. The proper use of statistics would have allowed Applicant to establish that she should have received a promotion as well as a salary adjustment as a remedy. 10. An offer of possible promotion to Grade A15 within one year was made orally to Applicant by the outside consultant but apparently was reversed by the Administration Department. 11. The remedy implemented in Applicant’s case was consistent with a pattern in which the outcome of the DRE process benefited male complainants to a greater extent than female complainants. 12. Apart from implementing the pay adjustment resulting from the DRE exercise, Respondent has taken no action on the prospective career measures awarded as part of the remedy in Ms. “W”’s case and continues to discriminate against her on the basis of her gender. 13. Respondent improperly used the report of the DRE review team to influence the denial of a promotion for which Applicant applied in her Department. 14. Applicant seeks as relief: - a. findings by the Tribunal that (i) the DRE team failed to reach correct conclusions on the evidence and the Fund’s decision rejecting a finding of discrimination was not properly founded, (ii) the DRE investigation violated Applicant’s right to due process, and (iii) Applicant’s career prospects were damaged by the improper use of the DRE team’s report; - b. promotion to Grade A15, retroactive to 1998; - c. compensation, retroactive to 1993, for pay disparity vis-à-vis comparably situated economists, and a “step-up” pay increase as of May 1, 2003; - d. damages of one year’s net salary for unfair procedures; - e. assistance to improve Applicant’s “career trajectory”; and - f. legal costs. - Respondent’s principal contentions (as summarized in its Answer and Rejoinder): 1. The procedures followed in the DRE review of Applicant’s claim were consistent with the procedures established for the DRE and upheld by the Tribunal in Ms. “Y” (No. 2). 2. The Fund properly exercised its discretion in appointing the members of the DRE review team, who were qualified to conduct the review. Fund officials involved in the DRE process were not affected by any conflict of interest with regard to Applicant’s case. Neither was the Administration Department’s role in the DRE process improper, but rather contributed to making the DRE a fair and reasonable exercise. 3. There was no evidence of any bias in the review team’s approach to investigating Applicant’s claim or of any institutional bias against Applicant. 4. The DRE review team’s conclusions were reasonably based on its review of Applicant’s claim. 5. The review team’s finding of skills deficits rebutted the presumption of discrimination. The “forest-for-the-trees” problem, i.e. strong quantitative and computer skills but a comparative need to develop analytical skills, was consistently noted by the review team in both the written record of Applicant’s performance and in the team’s interviews. 6. The review team’s finding that the early years of Applicant’s Fund career had been hampered because she had not been given the benefit of any doubts and her skills deficits appeared to have been magnified rather than minimized, also was substantiated. 7. Applicant did not present any probative evidence that her early career at the Fund had been adversely affected by gender discrimination. The review team appropriately concluded that her career had been hampered instead by poor management. 8. Applicant did not raise with the DRE review team any act of alleged discrimination that could have been investigated, and she did not establish that any actions or decisions of the Fund were discriminatory. 9. The Fund’s approach to the use of statistics in the DRE review of Applicant’s claim was not arbitrary, capricious or discriminatory. The DRE was based on the reasonable conclusion that statistical analysis did not provide a sufficient or appropriate basis for making findings and fashioning remedies in individual cases of alleged discrimination. The review team did give some weight to statistics in concluding that the report of the Working Group on the Status of Women created a “rebuttable presumption” of discrimination. However, the team correctly determined that Applicant’s individual claim needed to be reviewed in light of the actual facts of her career history. 10. In light of the lack of evidence of gender discrimination in Applicant’s case and the view that she needed to develop further the skills essential for higher grades, the DRE review team reasonably concluded that Applicant was at the appropriate grade level. 11. The remedy of a 6.5 percent salary adjustment was reasonably based on the review team’s investigation of Applicant’s case. Applicant’s salary was properly compared with that of other senior economists of her grade and age range. Also consistent with the team’s review and DRE procedures was the recommendation that Applicant be given assignments to develop and assess her skills to strengthen her ability to compete for higher level positions. 12. Applicant’s argument that the remedy recommended in her case reflected a pattern whereby the DRE itself was discriminatory against women is not credible and is not supported by any evidence. 13. Applicant has not shown that any recommendation was ever made as part of the DRE process that she be promoted to Grade A15 within one year. In any event, such a recommendation would have been inconsistent with Fund policies and therefore at odds with the DRE guidelines. 14. Applicant has not exhausted administrative review procedures as to her claims that the Fund has failed to follow through on the DRE recommendations and continues to discriminate against her on the basis of gender; therefore, these claims are not properly before the Tribunal. In any event, the claims are unfounded, as Applicant has been given assignments to enhance her competitiveness for higher grade positions and the DRE report was not improperly used to influence decisions against promotion within her Department. ### Legal Framework for the Administrative Tribunal’s Review of DRE Cases - The case of Ms. “W” and another of Ms. “Z” are the last cases arising from the Discrimination Review Exercise (DRE) to be presented for review by the Administrative Tribunal. - The Tribunal’s framework for review was established in Ms. “Y” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002-2 (March 5, 2002). - Key principles from Ms. “Y” (No. 2): - The Tribunal accepted a limited measure of review rather than de novo review of underlying discrimination claims, because applicants subject to the DRE had not pursued prior formal administrative review under GAO No. 31 within mandatory time periods. - The only decision subject to review by the Grievance Committee and the Administrative Tribunal is the decision of the Director of Administration affirming the DRE review team’s conclusions. - Examination of that decision “necessarily entails some consideration of whether the Applicant’s career did suffer discrimination,” but this is distinguishable from de novo examination of the underlying claims. - The Tribunal upheld the DRE as a lawful exercise of the Fund’s discretionary authority and recognized the DRE’s confidentiality and lack of written record as rationally related to its purposes. - The Tribunal applied an abuse of discretion standard to the conduct of the DRE process as applied to individuals, considering whether decisions were arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. ### Consideration of the Issues of the Case - The Tribunal applies the framework developed in Ms. “Y” (No. 2) to Ms. “W”’s contentions, organized into: 1. Procedural allegations; 2. Sustainability of the DRE’s findings and conclusions as to discrimination and remedy; and 3. Implementation of remedial action pursuant to the DRE, alleged improper use of the DRE report, and contentions of continuing discrimination. ### Procedural Allegations - Applicant’s challenges to the fairness of the DRE review of her case include: - a) the composition of the review team and the respective roles performed by its internal and external members; - b) the influence of the Administration Department and its Assistant Director; - c) the role exercised by the Fund’s Diversity Advisor; - d) alleged institutional bias against Applicant; and - e) the methodology applied by the DRE review team in Applicant’s case, specifically the means of applying a “rebuttable presumption” of discrimination and reliance on qualitative as well as statistical evidence. ### Composition of Review Team and Roles of Internal and External Members - Applicant contends that: - the DRE review team members were not qualified for their responsibilities; - some Fund officials involved in the review of Applicant’s claim were affected by bias; and - the role of the external team member was improperly constrained by these officials. - Respondent denies these charges. *Extracted from IMF Administrative Tribunal, Judgment no. 2005-2 (Ms. "W").* ### 72. Ms. “W” challenges the role and qualifications of the respective team ### 72. Ms. “W” challenges the role and qualifications of the respective team ### Qualifications of the external and internal team members - The Tribunal found the external team member’s qualifications met those prescribed in the Memorandum to Staff of January 13, 1997, including being "seasoned in mediation and alternative dispute resolution, including experience in the mediation of employment discrimination cases." - The January 13, 1997 Memorandum required outside consultants to have ". . . a mixture of backgrounds with expertise covering discrimination, diversity, arbitration and mediation." - The internal team member had "significant human resources experience within the Fund" and was likewise consistent with the DRE’s contemplated qualifications. ### Role and conduct of the external team member - The applicable Memorandum provided: "The review of individual cases will be carried out by external consultants [footnote omitted] assisted by a small number of Fund staff from both within and outside the Administration Department." - Both team members testified they worked together, divided interviewees, and "came together to discuss the case as a whole." - The external team member initially was skeptical of the partnership but later described pairing with "someone who understood how the Fund works" as "a very smart decision." - The external member testified the two "tried to do everything by consensus"; they "worked as a team," "talked things through" and together drafted their report. - The Consultants’ Report stated: - all initial and final interviews with complainants were conducted by both members of the review team; - many contact interviews were conducted by a single team member; - "[a]lthough the teams attempted to reach consensus on a case-by-case basis, the outside consultants made final determinations regarding the merit of claims presented." - The ultimate decisions were taken by the Director of Administration on the basis of the review teams’ recommendations. ### Influence of the Administration Department and its Assistant Director - The Administration Department and its Assistant Director had roles to ensure consistency across the DRE, which reviewed "70 or so individual cases." - The former ADM Assistant Director served on one of the five review teams and assisted the Director of Administration to coordinate the overall review and "try to the extent possible to ensure that each of the five review teams were approaching the exercise ... in a way that was consistent across the 70 or so individual cases." - The five review teams, the Director of Administration and the Diversity Advisor met before beginning individual reviews to consider procedures and methodology and met to discuss a sample "(15–20) of the 70 cases" for cross-fertilization and quality control. - The Tribunal found the procedures followed were consistent with those of other teams, reasonable, and that the measure of involvement of the Administration Department and its Assistant Director was appropriate. ### Role of the Fund’s Diversity Advisor - The January 1997 Memorandum stated the Diversity Advisor ". . . will not be involved in the actual reviews of individual cases." - The Diversity Advisor participated as a contact in Applicant’s case, but it is "not clear to the Tribunal on whose invitation" she was treated as such. - The Diversity Advisor conceded she had not observed Ms. “W”’s workplace interactions and gained impressions from exchanges relating to the Report of the Working Group on the Status of Women in the Fund and DRE implementation. - The Diversity Advisor described Applicant’s insistence on statistics as "aggressive" and perceived a mismatch between Applicant’s analytical and statistical strengths; these characterizations were "consistent with those of some other contacts." - The Tribunal noted there is ground to question whether the Diversity Advisor should have been interviewed as a contact, but concluded her role did not have a decisive influence on the disposition of the case. ### Alleged institutional bias against Applicant - Applicant alleged past staff advocacy and an adversarial history with the Assistant Director of Administration biased the DRE review. - The ADM Assistant Director testified he had "a high regard for Applicant’s work on behalf of the staff" and that prior experience did not create "any bias one way or another." - The Fund team member described Applicant as "active and outspoken" and "personally admired her for it," and did not recall anyone referring to Applicant as an "activist." - The Tribunal concluded Applicant did not establish that her staff advocacy activities resulted in institutional bias adversely affecting the DRE review. ### Methodology applied by the DRE review team in Applicant’s case - Applicant accepted there was a "rebuttable presumption" of discrimination but challenged the team’s effort to find elements of rebuttal (i.e., deficiencies in performance) and argued statistical evidence alone established discrimination. - The Tribunal recalled the DRE procedures’ "flexibility" and that "the way in which individual cases will be considered will depend very much on the nature of the circumstances that have given rise to the claim of discrimination" (Memorandum of August 28, 1996). - Applicant offered no specific instances or acts of discrimination; thus the DRE team sought to determine whether other impedimenta to her career existed. - The Tribunal held the decision to investigate possible performance-related explanations was within the leeway provided to review teams and found no evidence that this methodology prejudiced the outcome. - The Tribunal rejected Applicant’s contention that statistical evidence alone sufficed and upheld the Fund’s use of qualitative as well as statistical factors as not arbitrary, capricious or discriminatory. ### Sustainability of the findings and conclusions of the DRE review of Applicant’s case - Having found procedures fair and regular, the Tribunal examined whether the review team’s findings and the Director of Administration’s ratification (decision of May 21, 1998) were reasonably supported by evidence. - The Tribunal applied the standard that conclusions in discretionary individual administrative acts "must not be arbitrary or capricious, but rather must be reasonably supported by evidence" and that it "must satisfy itself that the contested decision is reasonably supported by evidence gathered by the DRE team." - Applicant challenged two principal outcomes: (a) the finding that her Fund career was not adversely affected by discrimination; and (b) the determination of a remedy for unfair or uneven treatment. ### The finding of non-discrimination - Both parties accepted it was appropriate for the review team to proceed from a "rebuttable presumption" of discrimination based on earlier statistical studies. - The review team concluded the presumption had been rebutted. - The Fund team member summarized consistent themes: - strengths: "exceptionally good quantitative skills, computer programming skills and data management skills" and a tendency to rely on "an enormous amount of data"; - area of weakness: "inability to analyze the data effectively in a systematic manner and to focus on the salient points and the critical points and finally, to basically connect those with the big picture." - The external team member testified "things were mixed," with some deficits and some strengths, and that "the notion that there were some deficits" led the team to conclude the presumption of discrimination had been overcome. *IMF Administrative Tribunal Judgment no. 2005-2 (Ms. "W")* ### 96. The Tribunal observes that the review team’s report presented the ### Tribunal observations on the Discrimination Review Exercise (DRE) outcome in Ms. “W”’s case ### Findings on discrimination and career progression - The DRE review team presented a “forest-for-the-trees” problem as limited and largely overcome, noting that the “skill deficit” was encountered in the “early period” of Ms. “W”’s career and had “attenuated” since her transfer to “Department 3.” - The review team reported that Ms. “W” had overcome at least some analytical shortcomings and that the issue was “. . . not mentioned in interviews with contacts who are keen observers of Ms. [“W”]’s recent career.” - The review team also stated that Ms. “W” “. . . appears not to have received the benefit of any doubts, and her skills deficits appear to have been magnified rather than minimized.” - The Tribunal sustained the DRE team’s and the Director of Administration’s conclusion that factors other than discrimination affected Ms. “W”’s career progression: - Evidence of inadequate analytical skill earlier in her career is mixed and not generally sustained by her Annual Performance Reports. - Interviews conducted by the DRE team provide some, but not consistent, support for analytical skill concerns. - Competition and structural constraints at Grade A14/A15 were material: - A large proportion of economists at Grade A14 are not promoted to Grade A15; competition for Grade A15 positions is considerable. - According to Respondent’s pleadings, more than half of Fund economists hold Ph.D. degrees—a credential Applicant does not possess. - The number of A15 positions in each economic department normally cannot exceed the number of divisions plus one, creating a “bottleneck” at A14. - The DRE found “indications of unfair or uneven treatment” in approximately half of the cases reviewed; Ms. “W”’s case was apparently among those. The Consultants’ Report noted that only in a “small number of cases” was there “clear evidence of discrimination.” - The Consultants’ Report explained that the DRE “was not designed to prove the presence or absence of discrimination to a high legal standard,” reflecting evidentiary limitations. ### Remedy awarded and Tribunal evaluation - The DRE awarded Applicant a one-time salary adjustment of 6.5 percent and career development assistance; no promotion was ordered. - Applicant contested adequacy of the remedy, asserting that a promotion of one grade level within one year had been indicated and that promotion was warranted by her statistical analysis. - The Tribunal found: - The evidence does not show that Ms. “W” was promised promotion as a remedy. - Even if an external team member suggested promotion within one year, the Director of Administration had discretion to accept or decline that recommendation. - Denial of outright promotion was not arbitrary or capricious given personnel policy constraints and scarcity of Grade A15 economist positions. ### Constraints on DRE remedies and decision process - DRE remedies were constrained to fall within the Fund’s existing human resources policies. The January 13, 1997 Memorandum stated remedies would generally be “prospective and fall within the Fund’s existing personnel policies, including reassignments, training and other development initiatives, promotions and salary adjustments.” - The Director of Administration retained final decision authority; consultants were advisory and could be overruled. - Additional factors identified by the Consultants’ Report that could affect remedy recommendations included: - “(1) promotion opportunities; (2) applicants’ current competitiveness for job openings; (3) budgetary constraints; (4) time-in-grade requirements; and (5) the promotion procedures of the review committees.” - The review team concluded Ms. “W” was not, at the time of review, competitive for an A15 position and recommended development actions instead: - Recommendation: provide supervisory responsibilities to assess management skills and assignments to develop and assess writing skills; if she did well, apply for A15 vacancies with ADM support. ### Salary adjustment rationale and comparators - The DRE team recommended a one-time salary increase of 6.5 percent, described as “the difference in salary between Ms. [“W”]’s current salary and the average salary of economists in the 50-52 year old range”; the Director of Administration adopted that recommendation. - The Tribunal upheld the selection of comparators from within A14 given the team’s qualitative determination that Applicant was not entitled to promotion. - Taking age as a proxy for experience afforded Applicant the benefit of the doubt: - Transmittal note from the Assistant Director of Administration observed Ms. “W” was 29 when she started to study economics and had fewer years of relevant work experience than most who join at 35. - In total years of relevant work experience, she compared more closely with those in a 46-47 year old age group where her salary was much closer to the norm. - Data showed for the majority of the 50-52 year-old A14 senior economists a Ph.D. was recorded as highest degree attained, whereas Applicant’s highest degree is a master’s degree. - The A14 senior economists spanned ages from 33 to 64. - The Tribunal concluded the salary adjustment determination was not arbitrary or capricious. ### Allegations of improper use, implementation, and continuing discrimination - Applicant alleged failure to implement career development measures, improper use of the DRE report to deny promotion, and continuing gender discrimination; Respondent contested admissibility and merits. - The Tribunal noted: - The DRE awarded a remedy for “unfair or uneven treatment” even though it did not conclude “discrimination” to a legal standard. - The Tribunal’s review of DRE-originating cases is limited in depth and it was not arbitrary or capricious for the Fund to conclude Ms. “W”’s career was not adversely affected by discrimination while awarding remedial measures. *Source: Tribunal report on the Discrimination Review Exercise (DRE) outcomes in the case of Ms. “W”* ### 115. The Fund maintains that because each of these latter complaints arose ### Judgment no. 2005-2 (Ms. "W") ### Exhaustion of administrative remedies and ripeness - Article V, Section 1 of the Statute requires that “When the Fund has established channels of administrative review for the settlement of disputes, an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review.” - The Tribunal has repeatedly emphasized the exhaustion requirement as a forum-of-last-resort safeguard and a means to build a detailed record (citing Ms. “J”, IMFAT Judgment No. 2003-1; Estate of Mr. “D”, IMFAT Judgment No. 2001-1; Ms. “Y”, IMFAT Judgment No. 1998-1). - The Tribunal assesses which administrative acts were subject to prior review when determining what it may consider (see Ms. “Y” (No. 2), para. 36; Ms. “J”, para. 84). - Factors found determinative in Ms. “W”: - Additional contentions (failure fully to implement remedial action; improper use of DRE report to influence a promotion decision) arose during pendency of a complex review procedure, including voluntary mediation, following Applicant’s Grievance to the Grievance Committee. - The Grievance Committee admitted testimony on the post-Grievance allegations, producing an evidentiary record and providing the parties an opportunity to settle claims. - Tribunal conclusion on ripeness: - The Tribunal finds no difficulty in considering Applicant’s further allegations as to implementation of the remedy and use of the DRE report insofar as they are a) closely linked with the challenge to the DRE decision itself and b) have been given some measure of review in the context of a procedure intended to give finality to longstanding claims. ### Admissibility of generalized or “continuing” discrimination claims - The Tribunal concludes that Applicant’s generalized allegation of “continuing” discrimination is not admissible and that Applicant has provided no evidence to support it. - Precedent and legal framing: - In Mr. “F”, IMFAT Judgment No. 2005-1, the Tribunal addressed whether a pattern of words, behaviors, actions or inaction rose to a cumulative deprivation of fair and impartial treatment (citing Discrimination Policy, July 3, 2003, p. 4). - Mr. “F” was distinguishable because the alleged discriminatory conduct occurred prior to, not following, initiation of administrative review under GAO No. 31. - In Ms. “Y” (No. 2), para. 39–40, the Tribunal held that its review of DRE cases is limited and that it may not examine underlying discrimination contentions as if pursued through the steps required under GAO No. 31; the Tribunal “remains controlled by its Statute.” - Tribunal conclusion on continuing discrimination: - There is no jurisdiction to review, as part of a DRE challenge, discrimination claims arising after conclusion of the DRE process based on a theory of “continuing” discrimination. - The Administrative Tribunal will not consider the generalized allegation that Ms. “W” continues to be subjected to gender discrimination. ### Implementation of remedial action and alleged improper use of the DRE report - Remedial action components under the DRE in Ms. “W”’s case: - A salary adjustment: the 6.5 salary increase was implemented. - Career development assistance: Applicant alleges it was not effected as set out in the Director of Administration’s decision letter of May 21, 1998. - Director of Administration’s decision (May 21, 1998) excerpt: - “As indicated in my earlier note to the staff-at-large, in cases where it appears there may have been unfair or uneven treatment, the review will not be an end in itself but just the beginning of a process for identifying opportunities. In your case, efforts will be made to identify assignments for you that further develop and assess your analytical, writing, and supervisory skills. The objective will be to help strengthen your ability to compete for positions at the Grade A15 level.” - Applicant’s statement on follow-up: - “I have never had – since the final interview, I have never had one call or one conversation whatsoever on follow-up on the results of the DRE. My personal feeling is that [the] Administration Department has done the opposite; that is, by giving things like the DRE summary to my SPM, they have had the opposite effect of really hurting my career.” - Testimony regarding career development assistance: - Assistant Director of Administration: career development assistance was “driven primarily by market forces”; HR made efforts (e.g., calls encouraging departments to interview candidates) but “the market forces were still the predominant ones.” - Assistant Director of ADM reported front office in “Department 3” was “very positive about wanting to give Ms. [“W”] . . . every opportunity to compete.” - Senior Personnel Manager (SPM) of “Department 3” recalled Applicant applied for two A15 positions, one in 1999 and one in 2000: - For the first position, Applicant “was judged not to have proven sufficient analytical skills for the A15 level.” - The second position was filled by another woman in the Department. - Applicant was given “stretch” assignments (policy work, mission opportunities); move to “Department 4” seen as opportunity to demonstrate skills. - Tribunal findings on remedial implementation: - The record indicates Applicant received assignments (mission assignments and her Resident Representative post) in which she could demonstrate analytical and managerial aptitude. - The Tribunal declines to accept that Applicant did not receive the career development assistance contemplated by the DRE remedy. - Allegation that DRE report was used to deny a promotion: - It is undisputed that in September 1999 a copy of the review team’s report was transmitted by an Administration Department official to the Senior Personnel Manager. - Applicant contends the report emphasized “skill deficits” and prejudiced the SPM’s judgment. - The review team’s report had a “forest-for-the-trees” problem described as limited and largely overcome (supra para. 96). - The SPM testified the report was not shared with others and denied it carried any weight in the SPM’s own assessment; the SPM cited independent concerns (e.g., mission assessment suggesting need for more analytical policy exposure). - Tribunal conclusion on alleged improper use of DRE report: - Applicant has not established that the DRE report was used to deny her a promotion. - It is not proven that disclosure of the report to the Senior Personnel Manager was the factor or even a factor in Applicant’s failure to be granted a promotion. - Failure in a few A15 promotion applications is not evidence of discrimination nor of failure to carry out DRE career development assistance—which is subject to “market forces.” - One successful candidate for an A15 post to which Ms. “W” applied was a woman. - Applicant currently holds responsibilities indicating the Fund’s confidence, as shown by her appointment as a Resident Representative. - For these reasons, Applicant did not succeed on claims that the Fund failed to implement career development assistance or used the DRE report to negatively influence her advancement prospects. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Application of Ms. “W” is denied. *IMF Administrative Tribunal Judgment No. 2005-2 (Ms. "W"), Washington, D.C., November 17, 2005.* ### 1. Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initia- ### 1. Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initia- ### Procedural framework for summary dismissal - The Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is "clearly inadmissible." - The Fund may file such a motion within thirty days of its receipt of the application. - The filing of the motion shall suspend the period of time for answering the application until the motion is acted on by the Tribunal. (Rule XII, para. 2) - Procedural requirements for motions: - "The complete text of any document referred to in the motion shall be attached in accordance with the rules established for the answer in Rule VIII." - The requirements of Rule VIII, Paragraphs 2 and 3, apply to the motion; if not met, Rule VII, Paragraph 6 applies mutatis mutandis. - Upon ascertaining that the motion meets formal requirements, the Registrar shall transmit a copy to the Applicant. - The Applicant may file an objection to the motion within thirty days from the date on which the motion is received. - "The complete text of any document referred to in the objection shall be attached in accordance with the rules established for the reply in Rule IX." - Upon ascertaining that the objection meets formal requirements, the Registrar shall transmit a copy to the Fund. - "There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests." - Rule XIII, para. 1: oral proceedings held "if . . . the Tribunal deems such proceedings useful." ### Factual background of the case - 1989: The Fund and the World Bank adopted a revised compensation system for their staffs following lengthy consideration. - 1998-2000: The Fund’s compensation system was extensively reviewed to further staffing objectives and ensure salaries remained appropriately related to comparator markets. - Executive Board annually decides on adjustments to align the Fund's salary structure with comparator markets. - January 2005: Executive Board decided to modify the compensation system; the modification adopted in January 2005 gave rise to the Applications before the Tribunal. - Executive Board announcement (email of Director of Human Resources) summarized: - Amendments "have the effect of expanding the circumstances under which management and the Executive Board can exercise discretion in setting this year’s annual salary increase." - The change "makes it possible for judgment on the size of the structural increase to be exercised when the payline for the Fund falls within the 10-20 percent testing range for international competitiveness, as well as when it falls outside the testing range." - "The extent of such discretion within the testing range is constrained—unlike the discretion that has been available outside the range—and must continue to be based on an evaluation of the factors bearing on the international competitiveness of Fund salaries." - "No consideration has yet been given to whether or how such discretion would be exercised in determining the salary increase for this year; those decisions will be taken up by Executive Directors during the annual salary review in March." - Following January 24, 2005 decision, Managing Director announced two errors discovered in comparator data used in the 2004 compensation review. - Correction placed the 2004 U.S.-indicated increase within the testing range. - On March 30, 2005, the Executive Board approved a supplementary increase in the Fund’s salary structure of two percentage points, with effect from May 1, 2004. - The retroactive adjustment placed the Fund’s 2004 salary structure two percentage points higher relative to the U.S. comparator, which increased the base for the 2005 market comparison and lowered the amount of increase indicated by the U.S. market for 2005. - "The structural increase actually called for by the amended compensation system, as approved in the 2005 compensation round, did not differ from the increase that would have been called for under the system existing prior to its January 2005 amendment." ### Channels of administrative review and timing - Article VI, Section 2 of the Statute: an application challenging the legality of a "regulatory decision" may be filed with the Tribunal within three months of its announcement or effective date; no channels of administrative review to exhaust for regulatory decisions being challenged directly. - The contested Executive Board decision was announced to staff on January 25, 2005. - On April 25, 2005, Applicants filed their Applications with the Administrative Tribunal. ### Parties’ principal contentions - Applicants’ contentions on the merits: 1. The Executive Board’s decision of January 24, 2005 fails to comply with the Fund’s "rules-based" compensation system and is therefore contrary to the internal law of the Fund, which has been established by the Fund’s past practices, creating legitimate expectations on the part of the staff. 2. The decision is contrary to general principles of international administrative law and infringes upon Applicants’ terms and conditions of employment. 3. The decision is not based on objective analysis and fails to support the international competitiveness of staff salaries as required by the Fund’s Articles of Agreement. 4. Accordingly, the Executive Board’s decision of January 24, 2005 is arbitrary and an abuse of discretion. - Respondent’s contentions on admissibility: 1. The challenged Executive Board decision of January 24, 2005 had no adverse financial consequences for the Applicants in the 2005 compensation review. 2. Applicants have not shown any other adverse effect flowing from the decision; alleged effects are abstract and hypothetical and conflate adverse effect with the merits. 3. Accordingly, Applicants have failed to establish any foreseeable and definite adverse effect resulting from the contested decision, as required for admissibility under the Statute. - Applicants’ contentions on admissibility: 1. Distinction between individual and regulatory decisions: widening discretionary powers affects the balance of interests between Management and staff and "opens the door for more specific decisions affecting the rights of the staff." 2. The Executive Board’s intention in amending the compensation system was to lower the amount of increase indicated by the U.S. market in 2005 to a level that would not have been permissible prior to the January 2005 amendment; lack of actual adverse financial consequences in 2005 was due to discovery of data errors in 2004. 3. The contested decision gives rise to foreseeable and definite adverse effects, relating to Applicants’ individual legal situations, as Applicants’ terms and conditions of employment have been affected by the widening of the Executive Board’s discretion. ### Tribunal’s analysis and legal reasoning - Jurisdiction: IMFAT reviews "individual decisions" and "regulatory decisions"; applicants must be "adversely affected" by the contested decision. - Precedent and interpretive guidance: - Cites Ms. "G" and Mr. "H" v. IMF, IMFAT Judgment No. 2002-3 (December 18, 2002), para. 61: the "adversely affected" requirement ensures an applicant has "an actual stake in the controversy" and prevents advisory opinions. - Cites Ayoub (No. 2), ILOAT Judgment No. 986 (1989): allowed challenge to amendment to pension regulations before application to individual cases where it was certain applicants would be adversely affected. - Cites Aelvoet (No. 6), ILOAT Judgment No. 1712 (1998), Consideration 10: "There may be a cause of action even if there is no present injury: time may go by before the impugned decision causes actual injury. The necessary, yet sufficient, condition of a cause of action is a reasonable presumption that the decision will bring injury. The decision must have some present effect on the complainant’s position." - Application to the present case: - The Executive Board’s January 2005 decision widened the discretion it may exercise in setting staff salaries. - Although application in 2005 produced no adverse financial consequences for staff (due to data correction and retroactive supplementary increase), the decision was adopted and remains in force and "will be applied in 2006 to affect the compensation of staff members, unless the Executive Board decides otherwise." - The Tribunal found "some present effect" inherent in the wider discretion that will be applied in 2006. - The threshold for admissibility is low: an application may be summarily dismissed only "if it is clearly inadmissible." - The Report of the Executive Board on the Statute supports direct challenges to regulatory decisions within three months "so that the question of legality . . . could hopefully be firmly resolved before there had been considerable reliance on, or implementation of, the contested decision." - Conclusion on admissibility: - "In the light of the foregoing considerations, the Applications before the Tribunal are not 'clearly inadmissible.'" - The Tribunal denies the Fund’s Motion for Summary Dismissal. ### Orders and subsequent procedure - Denial of Motion for Summary Dismissal: - "The Fund’s Motion for Summary Dismissal is denied." - Case management following denial: - The exchange of pleadings pursuant to Rules VIII – X will resume. - The filing of the Motion had suspended the time for answering the Applications; with denial, the Fund’s Answer on the merits, Applicants’ Reply and the Fund’s Rejoinder will follow according to the schedule prescribed by the Rules. - Decision rendered unanimously by the Tribunal: - Judges: "Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge." - Signatures: "/s/ Stephen M. Schwebel, President" and "/s/ Celia Goldman, Registrar." - Location and date: "Washington, D.C. December 6, 2005." *Ju D g m e n t no. 2005-3 (Ba k e r e t a l.), Washington, D.C., December 6, 2005.* ### 2. Ms. “Z” contests the decision of the former Director of Administration ### 2. Ms. “Z” contests the decision of the former Director of Administration ### Overview of claims and DRE outcome - Applicant alleged discrimination on the basis of gender, ethnicity or national origin, and age, asserting these prevented her from attaining a Fund career commensurate with her qualifications and experience. - The Discrimination Review Exercise (DRE) review concluded that Applicant had not been discriminated against in her career with the Fund. - The DRE did find that Ms. “Z” had not been adequately compensated for her use of multiple language skills in her first Fund assignment and granted a within-grade salary adjustment. - Applicant renewed her discrimination claims before the Administrative Tribunal and contended that the DRE investigation was procedurally defective, asserting that the review team was not competent and failed to investigate thoroughly and fairly. - Applicant also alleged she was not afforded due process by the Fund’s Grievance Committee in its review of her challenge to the DRE decision. - Respondent maintained the DRE investigation was impartial and followed established DRE procedures, that the review team’s findings were unsubstantiated with respect to discrimination, and that Applicant was afforded due process; it further asserted the Tribunal is not an appellate body for Grievance Committee proceedings. ### Procedure and case timeline - March 10, 2004: Ms. “Z” filed an Application with the Administrative Tribunal. - The Registrar advised deficiencies under Rule VII, para. 3; Applicant was given fifteen days to correct them and did so; the Application is considered filed on the original date. - The Tribunal earlier granted a two-month waiver of the statutory time limit for filing the Application under Article VI, Section 3 due to “exceptional circumstances.” - April 2, 2004: Application transmitted to Respondent. - April 19, 2004: Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4. - May 14, 2004: Respondent filed its Answer. - June 16, 2004: Applicant submitted her Reply. - July 19, 2004: Respondent filed its Rejoinder. - July 29, 2005: Tribunal issued a Request for Information as to Applicant’s current employment status; Fund replied on August 2, 2005. - The Tribunal decided not to hold oral proceedings; it relied on the record, including a transcript of Grievance Committee hearings where Ms. “Z”, DRE team members, and other witnesses testified. ### Additional pleading regarding merit increases and admissibility analysis - February 11, 2005: Applicant transmitted a memorandum to the Registrar addressed to her supervisor requesting review of merit salary increases since 1997, contending these increases fell below Fund averages beginning the year following submission of her DRE complaint despite continued good performance ratings. - February 25, 2005: The President of the Administrative Tribunal granted Applicant’s request to include the February 11, 2005 memorandum in the record (treated as an Additional Pleading under Rule XI); the Fund was given the opportunity to comment. - March 14, 2005: Respondent urged the Tribunal to disregard the submission, arguing: - Applicant’s merit increases from 1997 to 2004 were not relevant to the contested decision (May 29, 1998 decision of the Director of Administration upholding DRE recommendations). - The Fund had not had the opportunity to investigate the newly raised allegations or conduct administrative review; Applicant did not raise the merit-increase issue during Grievance Committee review. - The decisions Applicant now seeks to contest are no longer timely under GAO No. 31; thus the issue is inadmissible for failure to exhaust administrative remedies per Article V, Section 1 of the Tribunal’s Statute. - The Tribunal reviewed precedent in Ms. “W” (IMFAT Judgment No. 2005-2) and summarized its approach: - The Tribunal may admit post-DRE allegations if they are (a) closely linked with the challenge to the DRE decision itself and (b) have been given some measure of review in a procedure intended to give finality to long-standing claims. - Generalized or “continuing” discrimination allegations postdating the DRE are not admissible under the Tribunal’s scope of review of DRE cases. - Application to Ms. “Z”: - The Additional Pleading concerning merit increases beginning in 1997 is neither closely linked to the contested DRE decision nor given review by the Grievance Committee. - Applicant’s non-specific contention that DRE participation had a prejudicial effect on later job satisfaction was not raised in post-DRE administrative review procedures and lacks a link to the contested decision, which concerned starting salary (with a within-grade adjustment) and only tangentially career progression. - The Tribunal will not consider claims relating to merit increases beginning in 1997, generalized claims of “continuing” discrimination, or that participation in the DRE had prejudicial effects on post-DRE career development. ### Factual background of Ms. “Z”’s Fund career - Employment start date: June 23, 1980, as a Secretary at Grade B (equivalent to A4) in “Department 1.” - Education at time of hire: bachelor’s degree in languages; in 1982 attained a master’s degree in education and human development. - 1982: transferred to “Department 2”; within two months promoted to Grade C (equivalent to Grade A5) as a Personnel Clerk; remained in that grade and position until 1986. - 1986: became a Secretary in “Department 3,” at Grade A5. - During tenure in “Department 3,” promoted to Grade A6. - 1988: returned to “Department 2” as Personnel Assistant (later Human Resources Assistant) at Grade A6. - 1990: following ill health, became Grade A6 Administrative Assistant in “Department 4.” - 1992: transferred to “Department 5” as Editorial Assistant. - 1993: promoted to Grade A7. - October 2004: Applicant’s position was abolished and separation procedures initiated pursuant to GAO No. 16, Section 13. - Separation and retirement timeline: - Applicant will receive the maximum 22½-month separation leave period. - Retirement from the Fund on August 1, 2007. *IMF Administrative Tribunal, Judgment No. 2005-4 (Ms. “Z”)* ### 19. The Discrimination Review Exercise (DRE) was an exceptional, one- ### 19. The Discrimination Review Exercise (DRE) was an exceptional, one-time inquiry into cases of alleged discrimination ### Background and purpose - The DRE was an exceptional, one-time inquiry into cases of alleged discrimination, whenever originating, as long as they were brought to the attention of the Director of Administration during a specific, but narrow time frame, between August 28 and September 30, 1996. - The DRE was initiated by the Fund to investigate and remedy, through an alternative dispute resolution mechanism, instances of past discrimination that had adversely affected the careers of Fund staff. - The DRE followed a series of Fund studies after the 1992 Survey of Staff Views, including the May 1994 Working Group report “Equity and Excellence,” and the July 1995 Pelerei study “Discrimination in the Fund: A Study of the Nature, Extent, and Cause of Discrimination on the Basis of Race, Nationality, Religion and Age.” - The Managing Director’s communications in early and mid-1996 emphasized an independent, confidential review panel and the need to address cases where past discrimination may have adversely affected careers. ### Framework and procedures announced - The framework for ad hoc review was announced on August 28, 1996 in a Memorandum to Staff from the Director of Administration, “Review of Individual Discrimination Cases.” - Identification avenues included self-identification by individuals who believed their careers had been adversely affected by discrimination. - The Memorandum indicated review inputs would include subordinates, peers, and supervisors, and that recommended remedial actions would be “prospective and constructive,” including assignments, mobility, training, promotions, and salary adjustments. - A January 13, 1997 Memorandum, “Procedures for Review of Individual Discrimination Cases,” stated reviews would be carried out by external consultants assisted by Fund staff, and described the consultants as having expertise in discrimination, diversity, arbitration, and mediation and experience in public and private sector organizations. - The procedures committed to discrete, sensitive reviews, feedback sessions for applicants, and use of lessons learned to strengthen policies and practices to prevent future discrimination. ### Methodology of the reviews - Reviews were conducted by five review teams, each including one outside consultant and one Fund staff member. - The five teams, the Fund’s Special Advisor on Diversity, and the Director of ADM formed a committee meeting regularly to discuss policies and procedures; review teams presented selected cases to the full committee for consistency. - Individual reviews consisted of: - (1) an initial interview with the applicant; - (2) interviews with others having knowledge of the applicant’s Fund career (“contacts” limited to those authorized by applicants) including supervisors, subordinates, peers, and others; - (3) statistical analysis, where required; and - (4) a feedback interview with the applicant. - During the course of the review, the teams conducted approximately 600 contact interviews. - Interview practice: - All initial interviews were conducted by both team members except where applicants requested private meetings with the outside consultant. - Many contact interviews were conducted by one team member; Fund team members interviewed some secondary contacts privately. - Where Fund staff findings were potentially determinative, outside consultants conducted follow-up interviews. - Teams advised contacts to respect confidentiality and informed them feedback would be given to applicants in aggregate form to preserve anonymity. - Decision process and limits: - Teams attempted consensus, but outside consultants made final determinations regarding merit of claims and suggested remedial action. - Remedies were limited to prospective actions within the Fund’s existing personnel policies; limiting factors included: (1) promotion opportunities; (2) applicants’ current competitiveness for job openings; (3) budgetary constraints; (4) time-in-grade requirements; and (5) the promotion procedures of the review committees. ### Outcomes and remedial actions - The Consultants’ Report summarized methodology and outcomes: some 70 cases had been reviewed. - Alleged grounds across the cases: approximately 70 percent alleged discrimination primarily on grounds of race or nationality, 20 percent on grounds of gender, and the remaining 10 percent on grounds of age or religion. - The consultants reported review teams had made recommendations for 67 of the 70 cases filed. - Indications of “unfair or uneven treatment” had been identified in approximately half of the 67 cases recommended. - The Report clarified the DRE was not designed to prove discrimination to a high legal standard and stated that in a “small number of cases—mainly involving starting salaries or salaries on transfer to a different career stream—there was clear evidence of discrimination.” Many judgments were described as more subjective, based at times on “sketchy evidence sometimes going back as much as 20–25 years,” and review teams were influenced “by a desire, where possible, to give the staff member the benefit of the doubt.” - Remedies reported: - Promotions: - “In 17 of these 35 candidates for whom there was an indication of unfair or uneven treatment, the primary remedial outcome of the review was a promotion.” - Among these 17: some promotions were already in process without ADM support; others resulted largely from internal market forces with some management/ADM support; others resulted from specific management and/or ADM decisions outside the normal internal market. - Within-grade salary adjustments: - “In another 15 of the 35 cases in which some indications of uneven or unfair treatment were identified, a within-grade-salary adjustment averaging 6.2 percent was the primary remedial action.” - Career development support: - In many of the 32 cases where promotion and/or within-grade-salary adjustment was a primary outcome, staff also received training, reassignments, coaching, and mentoring. - In three cases where unfair or uneven treatment was identified, remedial action did not involve promotion or within-grade-salary adjustment but included career development support. - Even where no indication of unfair or uneven treatment was found, in 10 of the 32 such cases some form of supportive action (training or reassignment) was nonetheless being provided. ### Analysis by primary factors and gender - Distribution of primary factors among candidates for whom unfair treatment was found: - “The indicators of unfair or uneven treatment were related to primary factors roughly proportional to the overall distribution of candidates, with 77 percent of the candidates for whom unfair treatment was found linked primarily to race/nationality, 20 percent to gender, and 3 percent to age.” - The Report noted age was often an important secondary factor limiting later-career advancement where early-career advancement may have been hampered by nationality, race, and/or gender. - Gender-disaggregated outcomes: - “The discrimination cases of 37 men and 30 women were reviewed, and the proportion of candidates for whom indications of unfair or uneven treatment was identified was roughly equal for both (53 percent of the women and 49 percent of the men).” - Promotion outcomes were comparable between men and women, though the table indicated promotion was the primary remedy for 23 percent of women and for 27 percent of men. - Within-grade salary adjustments: - A larger proportion of women (27 percent) received within grade salary adjustments than men (19 percent). - The average size of the adjustment was larger for women (6.6 percent) than men (5.7 percent). - The Report attributed this in part to relatively low starting salaries for women accounting for a number of unfair treatment cases identified. *IMF Administrative Tribunal Reports, VOL. IV (Judgment no. 2005-4 (Ms. "Z"))* ### 31. In response to the Director of Administration’s August 28, 1996 Memo- ### 31. In response to the Director of Administration’s August 28, 1996 Memorandum to Staff — Applicant Ms. “Z” ### Background and Applicant’s Allegations - Applicant joined the Fund in June 1980 and asserted her Fund career “was adversely affected because of race and gender considerations, reinforced by the Fund’s unique culture of rewards and punishment.” - Applicant reported a deterioration of health from 1990 attributed to “unnecessarily stressful work conditions,” after which she “left [her] career aspirations and gradually regained a balanced life.” - Applicant stated that after sixteen years of Fund employment she had not received “a long-term performance assessment.” - Specific alleged incidents and categories of discrimination raised by Applicant included: - initial salary set allegedly lower than that quoted at the interview; - allegedly being placed “on probation” upon transfer to “Department 2”; - grading of her post in “Department 2” as a result of the Fund’s job grading exercise; - return to “Department 2” after employment with “Department 3,” allegedly resulting in “demotion” rather than promotion; - mistreatment in the new unit of “Department 2,” including alleged exclusion from meetings and being subject to “racist remarks,” resulting in damage to her health; - non-selection for vacancies to which she had applied (about “some twenty vacancies” later identified in Applicant’s contentions). - Applicant asserted comparative treatment: “I am certain that a male, or a European woman, preferably with a British accent, would never have been subjected to such a post [in “Department 2”] or be treated the way I was treated by Fund managers.” - Applicant indicated she is “treated respectfully in [“Department 5”]” and does not consider herself discriminated against in her current position, but that the discrimination she suffered “continues to be a very real part of my life, reflected in my salary and, above all in my professional satisfaction.” ### DRE Review Process, Findings, and Recommended Remedy - Under DRE procedures, a review team was appointed consisting of an outside consultant (“external team member”) and an Administrative Officer from another Fund department (“internal or Fund team member”). - The review team’s initial meeting with Ms. “Z” occurred on March 12, 1997. - Ms. “Z” provided written accounts, additional Annual Performance Reports (forwarded September 26, 1997), and identified potential witnesses she urged the team to contact. - Applicant requested replacement of the external consultant on October 14, 1997, alleging the consultant “seems to be overwhelmed and not attending to the details of my case,” and asserted he “had not contacted any of my witnesses.” - The Director of Administration on November 21, 1997 informed Applicant the team would “interview a wider range of contacts” and directed the team to continue its review; Applicant’s subsequent request for a replacement review team was unsuccessful. - The DRE review team’s confidential case report found one irregularity: Ms. [“Z”] “did not receive credit for her bilingual skills (French and Spanish) when she joined the Fund in 1980.” - The review team determined a prior 1991 salary adjustment had been insufficient to compensate her consistent with Fund policies and recommended “a 4.0 percent one-time salary adjustment effective May 1, 1998.” ### Administrative Decisions and Implemented Remedy - The review team held a final meeting with Ms. “Z” on May 7, 1998; by memorandum of May 21, 1998 the Director of Administration affirmed the team’s conclusions and recommendations. - The Director of Administration approved remedial action: “a 4.0 percent one-time salary adjustment within [her] current grade . . . effective May 1, 1998.” The merit increase recommended by Applicant’s department as of May 1, 1998, was to be applied to the new salary. - The Director of Administration noted: “the fact that we are taking steps on your behalf as a result of this review does not constitute evidence of discrimination.” - The Director of Administration’s May 29, 1998 decision is identified as the decision contested before the Administrative Tribunal. ### Subsequent Administrative Review, Grievance, and Tribunal Proceedings - Applicant sought administrative review by the Director of Administration on November 2, 1998, contending the DRE review was not objective or impartial and reiterating discrimination allegations dating from her hiring. - The Director of Administration confirmed the May 29, 1998 decision on November 16, 1998. - Applicant filed her Grievance on January 15, 1999. - After unsuccessful voluntary mediation, the Grievance Committee conducted hearings and issued its Recommendation and Report on September 15, 2003: - The Committee found the DRE investigation “procedurally sound.” - The Committee concluded Ms. “Z” had not established that the team’s findings and recommendations were arbitrary, capricious or discriminatory. - The Committee recommended denial of Applicant’s Grievance and included an ex gratia payment for legal fees; Fund management accepted the recommendation. - Ms. “Z” filed her Application with the Administrative Tribunal on March 10, 2004. ### Applicant’s Principal Contentions (as summarized by Applicant) - Applicant contended: 1. She experienced discrimination on the basis of gender, ethnicity or national origin, and age, preventing a career commensurate with her qualifications and experience. 2. She was not afforded fair process in the DRE review; an incompetent review team was arbitrarily assigned and the defect was not remedied. 3. The Administration Department and its Assistant Director, whom Applicant alleged had a conflict of interest, improperly influenced the review. 4. The review team failed to interview important witnesses while interviewing irrelevant staff. 5. Internal Fund studies (e.g., Working Group on the Status of Women; Advisory Group on Discrimination) substantiate Fund discrimination and should have been considered by the DRE team. 6. Applicant experienced discrimination in the DRE process itself, which Applicant said disproportionately benefited male complainants. 7. Participation in the DRE prejudiced Applicant, further diminishing job satisfaction. 8. The following incidents represent discrimination (reiterated list): - starting salary lower than quoted at interviews; - placement “on probation” after transfer to a new Division; - unfair grading in the 1985 job grading exercise; - denial of a requested Long Term Career Assessment and lack of career support; - “practical demotion” on transfer to a new work unit; - mistreatment, racist remarks, lack of supervisory support causing health problems and the end of career ambitions; - non-selection for “some twenty vacancies” applied to; and - lack of remuneration for consistent use of multiple languages until the DRE outcome. 9. The Grievance Committee failed to review Applicant’s Grievance in a neutral and professional manner consistent with due process. 10. Applicant sought relief including: - compensation equal to three years’ salary at highest level of Grade A-11; - administrative leave plus 30 months terminal leave; - separation lump sum equal to 22½ months salary; - repatriation/separation benefits; - outplacement package, including university-level courses; and - legal costs. ### Respondent’s Principal Contentions (as summarized by Respondent) - Respondent maintained: 1. The only decision properly before the Administrative Tribunal is the Director of Administration’s decision adopting the DRE team’s findings and recommendations; Applicant failed to show that decision was arbitrary, capricious, discriminatory or procedurally defective. 2. DRE procedures followed were consistent with DRE rules and prior Tribunal precedent (Ms. “Y” (No. 2)). 3. Appointment of DRE review team members was a proper exercise of discretion and team members were well qualified. 4. The DRE team properly selected relevant witnesses to interview. 5. The DRE review was not affected by any conflict of interest or improper influence from the Administration Department or its Assistant Director. 6. The DRE team correctly concluded there was no evidence of discrimination in Applicant’s case, having reviewed each alleged instance and finding them unsubstantiated: - starting salary setting was not improper or discriminatory; - Applicant was not subject to a discriminatory probationary period after transfer in 1982; - Applicant did not show her position was “grossly under graded” in the 1985 exercise; - the Fund did not discriminatorily deny a Long Term Career Assessment or fail to support career development; - Applicant was not demoted on transfer in 1988; - no evidence of supervisory discrimination in the new unit; - no showing that discrimination caused non-selection for vacancies; and - Applicant was not discriminatorily denied compensation for language skills; notwithstanding, as an outcome of the DRE, Applicant was granted a salary adjustment to compensate for regular use of multiple language skills in her first Fund assignment. 7. The Administrative Tribunal is not an appellate body with respect to Grievance Committee decisions. 8. Applicant was afforded due process during the Grievance Committee proceedings. ### Legal and Procedural Framework Considerations - The Tribunal identified the scope of its review of DRE cases in prior precedent (Ms. “Y” (No. 2), IMFAT Judgment No. 2002-2 (March 5, 2002)): - The DRE was announced as an alternative dispute resolution mechanism that “did not confer any new rights, nor replicate or replace the Fund’s grievance procedure.” - Applicants who failed to timely contest adverse decisions under the formal channels prescribed by GAO No. 31 could not expect the Tribunal to review underlying discrimination claims de novo as if timely pursued through GAO No. 31. - The Tribunal emphasized that DRE procedures are “by definition and design, intended to offer a mechanism for resolution of allegations of discrimination distinct from those afforded by legal proceedings,” limiting the depth of the Tribunal’s review and focusing review on the decision of the Director of Administration affirming the DRE findings. - The case of Ms. “Z” and the related case of Ms. “W” were the final cases arising from the DRE brought before the Administrative Tribunal. *IMF Administrative Tribunal Judgment no. 2005-4 (Ms. "Z"), IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. IV* ### 49. At the same time, however, the Tribunal concluded that, as Ms. “Y” ### Judgment no. 2005-4 (Ms. "Z") — Consideration of DRE-related Issues (Paras. 49–71) ### Tribunal’s Standard of Review and Precedent (Ms. “Y” (No. 2)) - Para. 49: The Tribunal concluded that examination of whether an Applicant’s career suffered discrimination “necessarily entails some consideration of whether the Applicant’s career did suffer discrimination.” - Para. 49: The Tribunal distinguished that consideration “from the de novo examination by the Tribunal of the underlying claims that Applicant seeks.” - Paras. 48, 49, 52: The Tribunal upheld as lawful exercise of the Fund’s discretionary authority the decision to implement the Discrimination Review Exercise (DRE) as a means to remedy, during a narrow time frame, instances of past discrimination that reached beyond statutory time bars and had not been previously raised through formal administrative review procedures. - Para. 48 (quoted): The Tribunal described the DRE as “. . . a good faith effort on the part of the Fund, perhaps unprecedented among international organizations, to resolve lingering allegations of past discrimination and to remedy the adverse effects of discrimination on the careers of aggrieved staff members. . . . The DRE was undertaken as a result of reasoned consideration by the Fund’s administration, based on recommendations made in an extensive study ‘Discrimination in the Fund’ (December 1995), suggesting that a procedure alternative to formal adjudication would facilitate the resolution of longstanding complaints.” - Para. 49 (summary): The Tribunal found procedures adopted for the DRE, for example, confidentiality and lack of a written record, “appeared to have been rationally related to its purposes” and that implementation of the DRE was a proper exercise of managerial discretion. - Para. 51 (quoted standard): For review of managerial discretion, discretionary decisions “cannot be overturned unless they are shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Report of the Executive Board, p. 19.) - Para. 51 (Tribunal’s application): In Ms. “Y” the Tribunal reviewed (a) consistency of procedures applied by the DRE team with established DRE procedures and those applied in other cases; (b) whether DRE conclusions and ratification by the Director of Administration were reasonably supported by evidence; and (c) whether investigation was tainted by bias. The Tribunal held the proceedings were “regular, appropriate and unexceptionable” and denied the Application. ### Framework Applied to Ms. “Z” (Outline of Contentions) (Para. 52) - The Tribunal frames Ms. “Z”’s contentions as: - 1) procedural allegations relating to the DRE review of Applicant’s claims; - 2) sustainability of the DRE’s findings and conclusions; - 3) allegations relating to the Grievance Committee’s review of Ms. “Z”’s challenge to the DRE decision. ### Procedural Allegations Relating to the DRE Review (Paras. 53–71) - Para. 53: Applicant’s specific procedural challenges: (a) composition of the review team; (b) influence of the Administration Department and its Assistant Director; (c) methodology applied by the DRE review team. - Paras. 54–56 (context): - The Tribunal notes it previously upheld features of the DRE (e.g., lack of a written record) as rationally related to DRE purposes (see Ms. “Y” (No. 2), para. 49). - Memoranda to staff provided guidelines for consultants (Memorandum to Staff of January 13, 1997; Memorandum of August 28, 1996). - Applicant alleged the review team was incompetent and unduly influenced; Respondent denied. Composition of the DRE Review Team - Paras. 57–61 (findings): - The external team member’s qualifications as an experienced human resources and diversity consultant who had performed internal investigations for other employers met the qualifications prescribed in the Memorandum to Staff of January 13, 1997, which stated outside consultants were to have “. . . a mixture of backgrounds with expertise covering discrimination, diversity, arbitration and mediation.” - The internal Fund team member was a seasoned staff member with experience in Fund human resource policies and relevant coursework; qualifications were consistent with those contemplated by the DRE. - The Memorandum provided that reviews “will be carried out by external consultants . . . assisted by a small number of Fund staff from both within and outside the Administration Department.” The Fund team member testified her role was supportive while the external team member “took the lead role” and was principal author of the report. - The practices described by the team in Ms. “Z”’s case were consistent with those summarized in the Consultants’ Report. - Applicant’s allegation that team assignment was discriminatory (e.g., team would not have been assigned to senior staff) was unsupported by evidence. - Para. 60: Denial of Applicant’s request for a replacement review team was found to be reasonably taken; the Fund directed expansion of contacts interviewed. - Para. 61: The Tribunal found no evidence that team members’ qualifications were lacking or that the external member was improperly influenced; the working relationship and interactions with Administration were consistent with DRE procedures. Influence of the Administration Department and its Assistant Director - Paras. 62–67 (findings): - Para. 62: Applicant alleged ADM officials who “created the problems” managed the DRE and could not assess objectively; the Tribunal considered such contentions to attack the underlying managerial decision to undertake the DRE, which had been upheld in Ms. “Y” (No. 2). - Paras. 63–65: Applicant alleged conflict of interest by the ADM Assistant Director, asserting he was “connected with, if not responsible for” actions “blocking” her career and “influence[d] . . . the direction taken by the team.” The external team member testified he reached conclusions independently and did not confer with the ADM Assistant Director or ADM Director about recommendations in Ms. “Z”’s case. - Para. 65 (Tribunal conclusion): The record showed the Assistant Director’s involvement in alleged discriminatory events was “attenuated at most”; his role in the DRE review of Applicant’s claim was limited and consistent with his role in other DRE cases. He was interviewed as a “contact” and intervened to widen the scope of contacts interviewed in response to Applicant’s complaint. The Tribunal found no conflict of interest in his role. - Paras. 66–67: The Tribunal emphasized consistency across DRE teams as a measure of procedural fairness. The former Assistant Director served as liaison among five teams to “help ensure some consistency of approach.” The Tribunal found procedures followed in Ms. “Z”’s case were consistent with those of other teams, were reasonable, and ADM involvement was appropriate. Methodology Applied by the DRE Review Team - Paras. 68–71 (applicant’s criticisms and Tribunal response): - Para. 68: Applicant complained the review team did not consider Fund studies (e.g., Working Group on the Status of Women; Report of the Chairman of the Fund’s Advisory Group on Discrimination), did not examine “real comparators” (e.g., men with comparable qualifications and experience), and interviewed irrelevant staff while omitting important witnesses. - Para. 69: The Tribunal observed Applicant presented discrimination as “not related to just one event or one period” and criticized the team for focusing investigation on incidents Applicant herself had communicated to the team, including a period with dropped performance ratings which Applicant described as “one very small piece in the whole picture.” - Para. 70: The external team member described discrimination as “a pattern of events over time” but stated investigative necessity to have “certain situations that I can investigate. I can’t investigate the whole thing. . . .” and that the team “zeroed in on specific cases, situations of discrimination, and tried to address those. We didn’t take it into a broader holistic gestalt of what was going on.” - Para. 71: The Tribunal noted the DRE approach in Ms. “Z” differed from Ms. “W”, where the review team proceeded from a “rebuttable presumption” of discrimination based on earlier Fund studies because Ms. “W” had proffered no specific instances. In Ms. “W” the Tribunal concluded that the methodology was within the leeway provided to review teams and there was no evidence it prejudiced the outcome. *IMF Administrative Tribunal, Judgment no. 2005-4 (Ms. "Z"), discussion of DRE procedural and methodological challenges (Paras. 49–71).* ### 72. As the Tribunal commented in Ms. “Y” (No. 2), para. 55, “[t]he hall- ### imfat-4 - 72. As the Tribunal commented in Ms. “Y” (No. 2), para. 55, “[t]he hall- ### DRE procedures and investigatory approach - The hallmark of the DRE procedures was their flexibility and they contemplated “a considerable degree of latitude for the review teams in undertaking their investigation.” - The Memorandum to Staff from the Director of Administration, “Review of Individual Discrimination Cases,” August 28, 1996, stated that “[t]he way in which individual cases will be considered will depend very much on the nature of the circumstances that have given rise to the claim of discrimination.” - The DRE review of Ms. “Z” proceeded by investigating specific claims through interviews of relevant contacts and review of documentation, consistent with the overall DRE method upheld by the Administrative Tribunal. ### Use of qualitative evidence versus statistics - The Tribunal rejected the contention that statistics alone might establish discrimination, affirming that the Fund’s decision to base DRE reviews on qualitative as well as statistical factors was not arbitrary, capricious or discriminatory. - Precedent cited: general statistics may provide useful background but do not by themselves suffice to prove gender discrimination. ### Witness selection and interviews - The DRE team interviewed more than twenty individuals in connection with Ms. “Z”’s claims. - Applicant conceded that, following ADM’s intervention, these included most contacts on her original list. - The external team member reviewed Ms. “Z”’s proposed contact list with her and sought explanations about each individual’s potential relevancy; the Tribunal found the team’s witness selection to be reasoned and within the discretion of review teams. ### Tribunal conclusion on procedures - The Tribunal concluded that the procedures applied by the Fund in the DRE review of Ms. “Z”’s case were reasonable, appropriate and consistent with the DRE procedures and with the fair resolution of Applicant’s claim. ### Sustainability of DRE findings and standard of review - The Tribunal must be satisfied that the contested decision is reasonably supported by evidence gathered by the DRE team. - The Tribunal reviewed whether the principal DRE conclusion—that Ms. “Z”’s Fund career was not adversely affected by discrimination but that she should receive a one-time salary adjustment to remedy inadequate compensation for use of multiple language skills in “Department 1”—was reasonably supported by the evidence. ### Findings on specific allegations - Starting salary (joined Fund in 1980) - Applicant contended her starting salary was set lower than quoted at interview; Respondent denied impropriety. - Applicant could not provide probative evidence; review team examined entry level salaries for contemporaneous hires and found no evidence of discrimination. - The Tribunal concluded the review team was not arbitrary or capricious in finding insufficient evidence of a promised higher starting salary. - Alleged probationary period upon transfer to “Department 2” (1982) - Applicant alleged she was placed “on probation” upon transfer in 1982; Respondent denied. - Review team concluded “probation” was sometimes used loosely to refer to “underfilling” (appointing to a grade lower than the advertised range until seasoned). - Grievance Committee testimony corroborated confusion between “probation” and “underfilling.” - Evidence indicated underfilling was common at the time and applied “. . . across the board, to men and women equally, and to staff at the B levels, as to professional staff as to assistant level staff.” - Applicant’s underfilling period lasted for less than two months and there was no evidence it resulted from discrimination. - Tribunal sustained the DRE finding of no discrimination in 1982 transfer. - Job grading exercise (mid-1980s) - Applicant claimed unfair grading; Fund maintained no demonstration of “grossly under graded” position. - Grievance Committee testimony showed widespread dissatisfaction with the exercise and a special appeals procedure was implemented, which Applicant did not use. - No evidence that Applicant was adversely affected or that grading was influenced by gender, race, nationality or age. - Tribunal found no ground to conclude discrimination resulted from the job grading exercise. - Long Term Career Assessment (LTCA) and career development support - Applicant did not receive an LTCA; record shows many staff did not receive it and the LTCA was discontinued. - Administration Department officials testified LTCA did not correlate with career advancement. - Applicant did not show LTCA omission was due to discrimination or adversely affected her career. - Applicant conceded she progressed “some on her own initiative” but alleged lack of support; record showed she had taken numerous Fund-funded courses and had training records evidencing “constantly been enrolled in taking courses.” - Former supervisors testified Ms. “Z” was perceived as able and ambitious and was given opportunities for career growth; one supervisor said recognition of capability led to increased responsibilities and steps that led to an upgrading of the position. - Applicant had participated in 9–10 missions; testimony indicated mission work was part of her professional development and she was permitted to go on missions as part of that understanding. - Tribunal sustained that Applicant did not experience discrimination regarding career development support. - Alleged “demotion” on transfer to “Department 2” (1988) - Applicant alleged she was “practically demoted” on transfer in 1988; Respondent denied. - DRE found the transfer was lateral; no evidence of any promise of increase in grade or title. - Applicant’s personnel record showed grade was A6 at transfer in 1988 and remained A6 thereafter. - Grievance Committee record did not support a promise of a professional position or that such a promise would have been consistent with Fund practices. - Tribunal sustained DRE finding of no discrimination in the 1988 transfer. - Alleged discriminatory treatment in new work unit (post-1988 return to “Department 2”) - Applicant alleged “overt” discrimination including “mistreatment, racist remarks, and above all, lack of support from supervisors,” resulting in health problems and an end to career ambitions. - Applicant provided detailed written communications to the DRE team and conceded she was given full opportunity to relate her experiences to the external team member and to review her account before the Grievance Committee. - The Tribunal reviewed the record and earlier findings and concluded the DRE team’s findings and recommendations, ratified by the Director of Administration (decision of May 29, 1998), were reasonably supported by the evidence. ### Tribunal conclusion - The Tribunal concluded the procedures applied in the DRE review of Ms. “Z”’s discrimination claim were fair and regular and that the DRE team’s findings and conclusions, as ratified by the Director of Administration, were reasonably supported by the evidence. *IMF Administrative Tribunal, Judgment no. 2005-4 (Ms. “Z”).* ### 104. In her Grievance Committee testimony, Applicant elaborated on the ### 104. In her Grievance Committee testimony, Applicant elaborated on the ### Allegations of mistreatment and discrimination - Applicant alleged “harsh treatment” experienced when brought into the unit as a senior assistant. - Applicant contended she was made to feel unwelcome and that the two other assistants received more support from their common supervisor. - Applicant (Ms. “Z”) alleged discriminatory remarks relating to the way she spoke her native language and the schools she had attended. - The record produced no corroboration that Applicant’s experience in the unit was affected by discrimination. - A co-worker described the unit’s supervisor as “not an easy person to deal with,” but there was no indication that Applicant’s nationality, gender or age played a role in interactions with the supervisor. - Tribunal conclusion: the DRE review’s finding that Applicant’s final assignment in “Department 2” was not affected by discrimination was sustained. ### Non-selection for vacancies and career progression - Applicant contends she was not selected for some twenty vacancies to which she applied and that she failed to attain a career commensurate with her qualifications and experience. - The Fund’s position: Applicant has not shown discrimination in non-selection and her progression from A4 to A7 was typical of Fund assistants. - DRE review: no evidence discrimination affected Applicant’s non-selection for vacancies she applied to for advancement to professional levels. - Testimony cited: - A former supervisor: “. . . it was not easy to move up from a support staff position up to a paraprofessional and then to a professional position. These things happened, yes, and probably still can happen today, but it was not easy.” - An Administration Department official: difficulty reflected the overall caliber and credentials of Fund staff. - ADM Assistant Director: “A7 is a career ending grade for a large number of assistants in the Fund.” - Tribunal precedent (Ms. “W”): “Competition for Grade A15 positions is considerable. For an economist not to succeed in a few applications for promotion to Grade A15 is hardly evidence of discrimination; it is rather evidence of competition.” (Ms. “W”, para. 98.) - Tribunal conclusion: DRE reasonably found Ms. “Z”’s career progression in the Fund was not adversely affected by discrimination. ### Remuneration for multiple language skills - Applicant contended she had not been adequately remunerated for consistent use of multiple languages on the job. - Outcome of the DRE: Applicant was granted a salary adjustment to compensate for regular use of multiple language skills in her first Fund assignment. - Neither the review team nor the Director of Administration concluded the inadequate remuneration resulted from discrimination. - Applicant did not dispute the within-grade salary adjustment of 4.0 percent granted as a remedy and the Tribunal found the remedy reasonably based as set out in the DRE report. ### Tribunal review of DRE conclusions and remedies - Having reviewed the entire record, the Administrative Tribunal held that the conclusions of the DRE team and their ratification by the Director of Administration were not arbitrary or capricious but reasonably supported by the evidence. - The Tribunal found no ground to question the DRE conclusion that Ms. “Z”’s Fund career was not adversely affected by discrimination. - Applicant alleged absence of “forward-looking remedies as promised in the DRE,” citing a May 29, 1998 Director of Administration statement about identifying opportunities; the Tribunal found no merit to the suggestion that she was denied implementation of any remedy resulting from the DRE review. - Applicant alleged the remedy reflected a pattern of gender discrimination in DRE outcomes. The Consultants’ Report did not show men were remedied at twice the rate of female complainants, and no other support for the contention emerged. - Tribunal conclusion: the Fund reasonably exercised managerial discretion to grant Applicant a one-time, within-grade salary increase and no other relief. ### Procedural allegations relating to the Grievance Committee - Applicant challenged aspects of the Grievance Committee review, alleging the Committee’s proceedings were not conducted in a “neutral and professional manner” or in accordance with due process. - Legal framework and Tribunal competence (D’Aoust precedent): - The Grievance Committee’s recommendations do not constitute “administrative acts” under Article II of the Tribunal’s Statute because the Committee is not qualified to take final decisions; the Managing Director or designee takes the final decision. - The Tribunal’s competence is limited to judging the legality of administrative acts after exhaustion of internal review procedures. - The Tribunal may, however, take account of the treatment of an applicant before, during and after recourse to the Grievance Committee and weigh the Committee’s record as evidence. - Tribunal findings on procedural claims: - Decisions of the Grievance Committee as to the admissibility of evidence and production of documents are not subject to review by the Administrative Tribunal; they rest within the Committee’s authority under GAO No. 31. - Any lapse in the evidentiary record of the Grievance Committee may be rectified by the Tribunal through Article X of its Statute and Rules XVII and XIII of its Rules of Procedure (power to order production of documents, request information, and hold oral proceedings); Applicant made no such requests. - On allegations that the Committee “blocked” her expert witness and improperly denied document requests, the Tribunal concluded those Committee decisions are not administrative acts reviewable by the Tribunal. - On allegations of bias and ill-treatment before the Committee, the Tribunal reviewed the extensive Grievance Committee transcripts and found no ground to discount the Committee record; Applicant had active assistance of two counsel and opportunity to comment and question witnesses. - The Tribunal accorded the full measure of weight it ordinarily gives to Grievance Committee proceedings in this case. ### Decision - FOR THESE REASONS: The Administrative Tribunal of the International Monetary Fund unanimously decides that the Application of Ms. “Z” is denied. - Signed and dated: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - /s/ Stephen M. Schwebel, President - /s/ Celia Goldman, Registrar - Washington, D.C., December 30, 2005 *Judgment no. 2005-4 (Ms. "Z"), Administrative Tribunal of the International Monetary Fund, December 30, 2005.* ### Introduction ### Introduction ### Case background and applicant's claims - Applicant: Mr. “F” in Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005-1 (March 18, 2005). - Allegations by Applicant: - Decision to abolish his position resulted in separation from service. - Abolition was motivated by religious discrimination. - During employment he was subjected to a hostile work environment based on religious affiliation. - The abolition was part of a departmental restructuring and was a pretext for removing him from his work unit. - He was not given adequate notice of the abolition of his position nor good faith assistance in finding alternative employment. ### Tribunal findings and remedies in Judgment No. 2005-1 - Tribunal conclusions: - Upheld the decision to abolish Mr. “F”’s position as a reasonable exercise of the Fund’s managerial discretion. - Found that the abolition decision was not motivated by religious discrimination. - Found procedural failures by the Fund relating to notice and response to workplace harassment. - Remedies awarded: - Compensation to Applicant in the sum of $100,000 for: - a) the Fund’s failures to take effective measures in response to religious intolerance and workplace harassment of which Mr. “F” was an object; and - b) the Fund’s failure to give Mr. “F” reasonable notice of the abolition of his position. - Paragraph of Judgment giving rise to interpretation request: para. 106, which included: - Statement that fair and transparent procedures require a staff member whose position is abolished be given reasonable notice of that prospect so the staff member can set out reasons to contest the propriety or equity of the abolition decision. - The summary notice given to Mr. “F” was “hardly adequate” for that purpose. ### Respondent’s Request for Interpretation - Respondent filed a Request for Interpretation of Judgment on August 10, 2005, pursuant to Article XVII of the Statute and Rule XX of the Rules of Procedure. - Applicant was afforded thirty days to present views; Applicant’s Comments were filed on September 8, 2005. - The Fund sought clarification principally on the application of para. 106 to future cases and on two stated issues the Tribunal identified the Fund to be asking: - (i) The nature and purpose of the requirement of advance notice of a decision to abolish a position. - (ii) How long a period of notice would be considered “reasonable.” - Fund’s further elaboration requested guidance on: - a. What relevant arguments an affected staff member may raise during the advance notice period and the obligations of the Fund in response (e.g., whether arguments about organizational development and planning must be taken into account or whether the right to be heard extends only to alleged improprieties or inequities related to assessment of performance, skills, conduct and the like). - b. Whether a minimum of 30 calendar days’ advance notice of the effective date of abolition would be considered reasonable by the Tribunal, and whether this period could be deducted from the 60-120 day notice period currently provided at the end of the redundancy process such that the total amount of notice remains the same. ### Legal framework for interpretation of judgments - Article XVII of the Statute provides: - “The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error.” - Rule XX (Interpretation of Judgments) relevant provisions: - Para. 1: After a judgment has been rendered, a party may apply requesting interpretation of operative provisions. - Para. 2: Application admissible only if it states with sufficient particularity in what respect operative provisions appear obscure or incomplete. - Para. 3: Tribunal shall give other parties reasonable opportunity to present views and then decide whether to admit the application; if admitted, Tribunal issues interpretation which becomes part of original judgment. - Commentary on the Statute emphasizes: - Authority to interpret own judgments where terms are unclear or incomplete to ensure judgments are given effect in accordance with tribunal’s findings and conclusions. - Tribunal not authorized to resolve hypothetical questions or issue advisory opinions. ### Jurisprudential background and limits on interpretation - The statutory authority to interpret judgments is a narrow exception to finality of judgments; the other exception is revision of judgment under Article XVI for discovery of decisive new fact. - The Tribunal has previously rejected requests for interpretation when such requests would infringe on finality or seek advisory guidance: - Interpretation requests were rejected in Order No. 1999-1 and Order No. 1997-1 where requests sought to alter the meaning of terms that were not obscure or to challenge legality of the Judgment. - The Tribunal’s role is not advisory; it resolves concrete cases brought before it and will not issue guidance on hypothetical or future applications of a clear judgment. ### Admissibility analysis of the Fund’s Request - Rule XX, para. 2 sets the admissibility threshold: the application must state with sufficient particularity in what respect operative provisions appear obscure or incomplete. - The Fund acknowledged “the operative provisions of the Judgment are clear with respect to their application in the case at hand.” - Fund’s basis for admissibility: uncertainty about impact of Judgment on future cases and need for guidance to formulate corrective action and comply with Tribunal’s ruling in subsequent abolitions of position to avoid litigation. - Applicant’s position: Respondent did not identify any operative provisions that are “obscure or incomplete”; the Request amounts to seeking an advisory opinion applicable to future cases; questions appropriateness of Tribunal advising on Fund human resources policies except in concrete cases. - Tribunal’s assessment: - The operative provisions are clear for Mr. “F”’s case; the Fund is effectively seeking advice about future application rather than interpretation of an obscure or incomplete operative provision. - The Fund’s two substantive questions were characterized as: - (i) the nature and purpose of advance notice requirement; and - (ii) duration of what constitutes “reasonable” notice. - The Fund’s further elaborated sub-questions seek policy guidance beyond interpretive authority. ### Decision - Tribunal conclusion: the Fund seeks advice rather than interpretation; rendering such advice is outside the powers of the Tribunal. - The request for interpretation of the Judgment was denied. - Signatories: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Location and date stated in the text: Washington, D.C. December 6, 2003. *Order No. 2005-2 (Mr. “F”), IMF Administrative Tribunal* ### conclusion of non-discrimination sustained as not arbitrary or capricious where ### conclusion of non-discrimination sustained as not arbitrary or capricious where ### Conclusions on non-discrimination - Applicant awarded relief for “unfair or uneven treatment” and DRE not designed to determine “discrimination” to a legal standard - Judgment No. 2005-2 (Ms. “W”), para. 102; p. 113. ### Findings on career progression - conclusion sustained that factors other than discrimination affected Applicant’s career progression - Judgment No. 2005-2 (Ms. “W”), para. 97; p. 111. ### Citation - in D e x (2005) 195 *Judgment No. 2005-2 (Ms. “W”), and D e x (2005).* ### conclusion that Applicant’s career not adversely affected by discrimination ### conclusion that Applicant’s career not adversely affected by discrimination ### Findings on discrimination and career impact - conclusion that Applicant’s career not adversely affected by discrimination sustained as reasonably supported by the evidence — Judgment No. 2005-4 (Ms. “Z”), paras. 79–112; pp. 165–172. - history, outcomes, and Fund’s policies governing — Judgment No. 2005-2 (Ms. “W”), paras. 33–45; pp. 83–90. - history, outcomes, and Fund’s policies governing — Judgment No. 2005-4 (Ms. “Z”), paras. 19–30; pp. 141–147. ### Methodology and procedural review - methodology of applying “rebuttable presumption” of discrimination in Applicant’s case was within leeway permitted by DRE procedures — Judgment No. 2005-2 (Ms. “W”), paras. 85–88; pp. 108–109. - methodology of investigating specific incidents brought to review team’s attention by Applicant sustained as consistent with DRE procedures — Judgment No. 2005-4 (Ms. “Z”), paras. 68–76; pp. 162–165. - no abuse of discretion in basing DRE on qualitative considerations as well as statistical data — Judgment No. 2005-2 (Ms. “W”), paras. 18–21; pp. 79–80. Judgment No. 2005-4 (Ms. “Z”), para. 74; p 164. - procedural challenges denied where procedures applied in Applicants’ cases were consistent with those set forth for DRE and fair resolution of complaint — Judgment No. 2005-2 (Ms. “W”), paras. 70–90; pp. 103–109. Judgment No. 2005-4 (Ms. “Z”), paras. 53–76; pp. 157–165. ### Remedies and relief - remedies accorded Applicants pursuant to DRE sustained as reasonably based — Judgment No. 2005-2 (Ms. “W”), paras. 103–113; pp. 113–117. Judgment No. 2005-4 (Ms. “Z”), paras. 113–116; pp. 172–173. ### Bias, scope of review, and admissibility - review not affected by bias against Applicant — Judgment No. 2005-2 (Ms. “W”), paras. 83–84; pp. 107–108. - scope of IMFAT’s review of claims initially raised under — Judgment No. 2005-1 (Mr. “F”), note 12; p. 42. Judgment No. 2005-2 (Ms. “W”), paras. 64–65, 102 and note 23; pp. 100–101, 113. Judgment No. 2005-4 (Ms. “Z”), paras. 47–48, 112 and note 27; pp. 155–156, 172. - allegation of “continuing” discrimination inadmissible where failure to exhaust channels of administrative review — Judgment No. 2005-2 (Ms. “W”), paras. 120–121; p. 120. Judgment No. 2005-4 (Ms. “Z”), paras. 15–16; pp. 139–140. - contention raised in additional pleading inadmissible where not closely linked to contested decision nor given measure of review by Grievance Committee — Judgment No. 2005-4 (Ms. “Z”), paras. 14, 114; pp. 139, 172–173. - decision under ad hoc discrimination review exercise cannot be reviewed by Tribunal as if claims pursued on timely basis through GAO No. 31 — Judgment No. 2005-2 (Ms. “W”), paras. 64–65, 102 and note 23; pp. 100–101, 113. Judgment No. 2005-4 (Ms. “Z”), paras. 47–48, 112 and note 27; pp. 155–156, 172. ### Evidence, documents, and Grievance Committee record - evidence before tribunal includes record generated by Grievance Committee — Judgment No. 2005-2 (Ms. “W”), para. 7; p. 76. Judgment No. 2005-4 (Ms. “Z”), paras. 7, 121; pp. 136, 176. - decisions of Grievance Committee as to admissibility of evidence and production of documents are not “administrative acts” subject to Tribunal’s review and rest exclusively within Grievance Committee’s authority under GAO No. 31 — Judgment No. 2005-4 (Ms. “Z”), para. 119; p. 175. - lapse in evidentiary record of Grievance Committee may be rectified for purposes of Tribunal’s consideration through Tribunal’s own fact-finding procedures — Judgment No. 2005-4 (Ms. “Z”), para. 120; pp. 175–176. - where allegations of bias and lack of due process by Grievance Committee, Tribunal’s review of Grievance Committee’s record revealed no ground to give record of proceedings any less than full measure of weight ordinarily accorded them — Judgment No. 2005-4 (Ms. “Z”), paras. 117–122; pp. 173–176. ### Statistics and probative value - statistics on DRE outcomes not probative of discrimination in DRE process or in Applicant’s case — Judgment No. 2005-2 (Ms. “W”), paras. 28, 112; pp. 82, 117. Judgment No. 2005-4 (Ms. “Z”), para. 115; p. 173. - no abuse of discretion in basing ad hoc discrimination review exercise on qualitative considerations as well as statistical data — Judgment No. 2005-2 (Ms. “W”), paras. 18–21; pp. 79–80. Judgment No. 2005-4 (Ms. “Z”), para. 74; p. 164. *IMF Administrative Tribunal Reports, Vol. IV* ### conclusion of Grievance process ### conclusion of Grievance process ### Jurisdiction and scope (Article II — Article IV) - The Tribunal is established as the Administrative Tribunal of the International Monetary Fund (the Tribunal) (ARTICLE I). - Competence of the Tribunal (Article II): - Competent to pass judgment on applications: - by a member of the staff challenging the legality of an administrative act adversely affecting him (Article II (1)(a)); or - by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant (Article II (1)(b)). - Definitions for purposes of the Statute (Article II (2)): - “administrative act” means any individual or regulatory decision taken in the administration of the staff of the Fund. - “regulatory decision” means any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund. - “member of the staff” includes: - any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; - any current or former assistant to an Executive Director; and - any successor in interest to a deceased member of the staff as defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund. - Time calculation rule: the calculation of a period of time shall not include the day of the event from which the period runs, and shall include the next working day of the Fund when the last day of the period is not a working day. - The masculine pronoun shall include the feminine pronoun. - The Tribunal has only the powers conferred under the Statute and shall apply internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts (Article III). - Issues concerning competence are to be settled by the Tribunal in accordance with the Statute (Article IV). ### Exhaustion of administrative review and time limits (Article V — Article VI) - Exhaustion requirements where Fund channels of administrative review exist (Article V (1)–(2)): - An application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review (Article V (1)). - Where the Fund’s procedure includes the grievance/complaint procedure described, administrative review is deemed exhausted when: - three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted (Article V (2)(a)); - a decision denying the relief requested has been notified to the applicant (Article V (2)(b)); or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken (Article V (2)(c)). - Where the available channels do not include the procedure described in Section 2, review is deemed exhausted when: - three months have elapsed since the request for review was made and no decision stating that the relief requested would be granted has been notified to the applicant (Article V (3)(a)); - a decision denying the relief requested has been notified to the applicant (Article V (3)(b)); or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken (Article V (3)(c)). - All channels of administrative review are deemed exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal (Article V (4)). - Admissibility time limits (Article VI): - An application challenging an individual decision is not admissible if filed more than three months after all available channels of administrative review have been exhausted, or, absent such channels, after notification of the decision (Article VI (1)). - An application challenging a regulatory decision is not admissible if filed more than three months after the announcement or effective date of the decision, whichever is later; however, the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging an individual decision taken pursuant to that regulatory decision (Article VI (2)). - The Tribunal may waive the time limits prescribed under Sections 1 or 2 in exceptional circumstances if it considers the delay justified (Article VI (3)). - Filing an application does not suspend implementation of the contested decision (Article VI (4)). - No application may be filed or maintained after the applicant and the Fund have reached an agreement on the settlement of the dispute giving rise to the application (Article VI (5)). ### Composition, independence, and procedural organization (Article VII — Article XI) - Appointment and qualifications (Article VII (1)–(2)): - The President is appointed for two years by the Managing Director after consultation with the Staff Association and with the approval of the Executive Board; the President shall have no prior or present employment relationship with the Fund. - Two associate members and two alternates with no prior or present employment relationship with the Fund are appointed for two years by the Managing Director after appropriate consultation. - The President, associate members, and alternates must be nationals of a member country of the Fund at the time of appointment and must possess qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. - Reappointment and partial-term replacement rules apply (Article VII (2)). - Conflict of interest and decision-making (Article VII (3)–(5)): - Any member with a conflict of interest shall recuse himself (Article VII (3)). - Decisions are taken by the President and associate members, with alternates designated as needed; if the President is unable to hear a case, the elder associate member shall act as President (Article VII (4)). - The Managing Director may terminate a member’s appointment if, in the unanimous opinion of the other members, the member is unsuited for further service (Article VII (5)). - Independence and administration (Article VIII — Article IX): - Members are completely independent, receive no instructions, and are considered officers of the Fund for purposes of the Articles of Agreement (Article VIII). - The Managing Director makes administrative arrangements and designates Secretariat personnel under the President’s authority; such personnel shall not disclose confidential information (Article IX (1)–(2)). - Expenses of the Tribunal are borne by the Fund (Article IX (3)). - Location and oral proceedings (Article XI — Article XII): - The Tribunal holds sessions at the Fund’s headquarters at dates fixed according to its Rules of Procedure (Article XI). - The Tribunal decides whether oral proceedings are warranted; oral proceedings are open unless exceptional circumstances require they be held in private (Article XII). ### Evidence, Rules of Procedure, and participation (Article X) - Evidence and confidentiality (Article X (1)): - The Tribunal may require production of documents held by the Fund, except the Managing Director may withhold evidence if introduction of such evidence might hinder operation of the Fund due to the secret or confidential nature of the document; such a determination is binding on the Tribunal. - If evidence is withheld, the applicant’s allegations concerning the contents of any document so withheld shall be deemed to have been demonstrated in the absence of probative evidence to the contrary. - The Tribunal may examine witnesses and experts, subject to the same qualification. - Rules of Procedure and counsel (Article X (2)–(3)): - Members shall, by majority vote, establish the Tribunal’s Rules of Procedure covering: - presentation of applications and the procedure to be followed; - intervention by persons to whom the Tribunal is open under Article II Section 1 whose rights may be affected by the judgment; - presentation of testimony and other evidence; - summary dismissal of applications without disposition on the merits; and - other matters relating to the functioning of the Tribunal (Article X (2)(a)–(e)). - Each party may be assisted by counsel of his choice, other than members of the Fund’s Legal Department, and shall bear the cost thereof, subject to Article XIV Section 4 and Article XV (Article X (3)). ### Decisions, remedies, and costs (Article XIII — Article XIV) - Decision-making and finality (Article XIII): - All decisions of the Tribunal shall be by majority vote (Article XIII (1)). - Judgments shall be final, subject to Article XVI and Article XVII, and without appeal (Article XIII (2)). - Each judgment shall be in writing and shall state the reasons on which it is based (Article XIII (3)). - Deliberations of the Tribunal are confidential (Article XIII (4)). - Remedies for individual and regulatory decisions (Article XIV (1)–(4)): - If an application challenging the legality of an individual decision is well-founded, the Tribunal shall prescribe the rescission of such decision and all other measures required to correct the effects of that decision (Article XIV (1)). - When prescribing non-monetary remedial measures, the Tribunal shall fix an amount of compensation payable if the Managing Director, within one month of notification of the judgment, decides, in the interest of the Fund, that such measures shall not be implemented. The amount shall not exceed the equivalent of three hundred percent (300%) of the current or last annual salary from the Fund. The Tribunal may, in exceptional cases and with specific reasons, order payment of a higher compensation (Article XIV (2)). - If an application challenging the legality of a regulatory decision is well-founded, the Tribunal shall annul such decision; any individual decision adversely affecting a staff member taken before or after the annulment on the basis of such regulatory decision shall be null and void (Article XIV (3)). - If an application is well-founded in whole or in part, the Tribunal may order that reasonable costs incurred by the applicant, including the cost of counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, nature and quality of work performed, and the amount of the fees in relation to prevailing rates (Article XIV (4)). - Adjournment for procedural compliance (Article XIV (5)): - When a required procedure prescribed in the Fund’s rules has not been observed, the Tribunal may, at the Managing Director’s request, adjourn proceedings for institution of the required procedure or adoption of appropriate corrective measures, establishing a time certain for such actions. *Source: IMF Administrative Tribunal Reports, Vol. IV — Statute of the Administrative Tribunal of the International Monetary Fund (selected Articles I–XIV reproduced in the Appendix).* ### 1. The Tribunal may order that reasonable compensation be made by ### imfat-4 - 1. The Tribunal may order that reasonable compensation be made by ### Compensation and costs (Tribunal awards) - The Tribunal may order that reasonable compensation be made by the applicant to the Fund for all or part of the cost of defending the case if it finds that: - a. the application was manifestly without foundation either in fact or under existing law, unless the applicant demonstrates that the application was based on a good faith argument for an extension, modification, or reversal of existing law; or - b. the applicant intended to delay the resolution of the case or to harass the Fund or any of its officers or employees. - The amount awarded by the Tribunal shall be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may, in particular cases, waive the claim of the Fund against the applicant. ### Revision, interpretation, and correction of judgments - Revision (Article XVI): - A party to a case in which a judgment has been delivered may request revision where discovery of a fact which by its nature might have had a decisive influence on the judgment occurs, provided that the fact was unknown both to the Tribunal and to that party at the time the judgment was delivered. - The request for revision must be made within a period of six months after that party acquired knowledge of such fact. - Interpretation and correction (Article XVII): - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. ### Recordkeeping and confidentiality (Article XVIII) - Filing and delivery: - The original of each judgment shall be filed in the archives of the Fund. - A copy of the judgment, attested to by the President, shall be delivered to each of the parties concerned. - Public availability and redaction: - A copy shall also be made available by the Secretariat on request to any interested person, provided that the President may decide that the identities or any other means of identification of the applicant or other persons mentioned in the judgment shall be deleted from such copies. ### Amendment and temporal jurisdiction limits - Amendment (Article XIX): - This Statute may be amended only by the Board of Governors of the Fund. - Temporal limits on competence (Article XX): - 1. The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if the channels of administrative review concerning that act have been exhausted only after that date. - 2. For decisions taken between October 15, 1992 and the establishment of the Tribunal, the application shall be admissible only if it is filed within three months after the establishment of the Tribunal. - For purposes of this provision, the Tribunal shall be deemed to be established when the staff has been notified by the Managing Director that all the members of the Tribunal have been appointed. ### Extension of competence to other international organizations (Article XXI) - The competence of the Tribunal may be extended to any international organization upon the terms established by a special agreement to be made with each such organization by the Fund. - Each special agreement shall: - bind the organization by the judgments of the Tribunal; - make the organization responsible for the payment of any compensation awarded by the Tribunal in respect of a staff member of that organization; and - include provisions concerning the organization’s participation in the administrative arrangements for the functioning of the Tribunal and concerning its sharing the expenses of the Tribunal. ### Purpose and scope of the Tribunal (Introduction and Article II commentary) - Purpose: - Establishment of an Administrative Tribunal of the International Monetary Fund to adjudicate employment-related disputes at the Fund. - Scope of competence (Article II, Section 1): - a. Jurisdiction over applications by a member of the staff challenging the legality of an administrative act adversely affecting him. - b. Jurisdiction over applications by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant. - Clarifications: - The Tribunal determines whether a decision transgressed the applicable law of the Fund; it will not resolve hypothetical questions or issue advisory opinions. - Individuals who are not staff but have rights under Fund retirement or benefit plans (e.g., beneficiaries under the Staff Retirement Plan (SRP), nonstaff enrollees in the Medical Benefits Plan (MBP)) may bring claims only with respect to decisions arising under or concerning those plans. *Report of the Executive Board to the Board of Governors on the Establishment of an Administrative Tribunal for the International Monetary Fund* ### 2. For purposes of this Statute, ### 2. For purposes of this Statute, ### Definitions: scope of review (Section 2(a)–(b)) - "administrative act" shall mean any individual or regulatory decision taken in the administration of the staff of the Fund. - "regulatory decision" shall mean any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund. - The definitions of "administrative act" and "regulatory decision" delineate the subject matter jurisdiction (competence ratione materiae) of the tribunal and determine the types of cases the tribunal may hear. - The tribunal is competent to hear challenges to the legality of an "administrative act"—encompassing all decisions affecting terms and conditions of employment, including staff regulations set forth in the N Rules. - Jurisdiction requires an identifiable "decision" in the application filed by the staff member; individual administrative decisions will typically be contested after pursuit of established administrative review channels, including recourse to the Grievance Committee. - The tribunal may review regulatory decisions either directly or in the context of reviewing an individual decision based on a regulatory decision; examples include Executive Board decisions on compensation, pensions, tax allowance, benefits, job grading, the SRP, and staff rules and regulations promulgated by management (e.g., General Administrative Orders). - The statute excludes from tribunal competence resolutions taken by the Board of Governors; the Board of Governors, as the organ establishing the tribunal, may limit the tribunal’s jurisdiction by resolution and its resolutions are the highest expression of membership will short of an amendment of the Articles. ### Definitions: who qualifies as "member of the staff" (Section 2(c)) - "member of the staff" shall mean: - (i) any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; - (ii) any current or former assistant to an Executive Director; and - (iii) any successor in interest to a deceased member of the staff as defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund. - Subsections (c)(i) and (ii) include only staff on regular or fixed-term appointments and assistants to Executive Directors employed to assist in clerical, secretarial, or technical capacities. - Successors in interest (personal representatives of the estate) may assert rights of a deceased staff member (e.g., unresolved termination payments). - The statute excludes: - unsuccessful candidates to the staff; - persons employed under contract to the Fund; and - the Staff Association acting in its own name. ### Procedural time calculation and gender language (Section 2(d)–(e)) - The calculation of a period of time shall not include the day of the event from which the period runs, and shall include the next working day of the Fund when the last day of the period is not a working day. - Periods (e.g., filing time limits in Article VI) begin the day after the challenged decision is rendered; if the final day falls on a weekend or holiday, the deadline extends to the next working day. - The masculine pronoun shall include the feminine pronoun (statute applies equally to males and females; masculine pronoun used for simplicity). ### Article III — Limits and applicable law (first, second, third, fourth sentences) - First sentence: "The Tribunal shall not have any powers beyond those conferred under this Statute." - Administrative tribunals have limited jurisdiction; the tribunal can act only to the extent its statute confers authority. - Second sentence: "In deciding on an application, the Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts." - The tribunal must apply Fund internal law (formal/written and unwritten sources) and generally recognized principles of international administrative law for judicial review. - Formal sources include the Articles of Agreement, By-Laws, Rules and Regulations, and General Administrative Orders; unwritten sources include administrative practice and general principles (e.g., audi alteram partem). - The tribunal should not apply standards of review beyond those used by other administrative tribunals; review of regulatory decisions is narrow and must respect the proper exercise of authority by decision-making organs. - Discretionary decisions may be overturned only if shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. - The Fund retains broad power to alter terms and conditions of employment prospectively; limitations arise where the Fund has obligated itself by formal commitment or consistent established practice not to amend a particular element of employment. Even such commitments may permit adjustments when reasonably justified by developments (e.g., urgent financial imbalances). - Third sentence: "Nothing in this Statute shall limit or modify the powers of the organs of the Fund under the Articles of Agreement, including the lawful exercise of their discretionary authority in the taking of individual or regulatory decisions, such as those establishing or amending the terms and conditions of employment with the Fund." - The tribunal must respect separation of powers; it cannot substitute its judgment for legislative or executive organs nor question the advisability of policy decisions. - Fourth sentence: "The Tribunal shall be bound by any interpretation of the Fund’s Articles of Agreement decided by the Executive Board, subject to review by the Board of Governors in accordance with Article XXIX of that Agreement." - Interpretations of the Articles rendered by the Executive Board are binding on the tribunal in the context of challenges to decisions, although the tribunal retains authority to interpret the Articles and to make findings of legality consistent with the Board’s interpretation. - This binding effect aims to avoid irreconcilable conflicts between Executive Board interpretations and tribunal interpretations. ### Article IV — Tribunal’s authority to determine competence - "Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute." - The tribunal has authority to determine its own competence within the terms of its statute; it may interpret but not expand its competence for a particular case. *Report of the Executive Board (Administrative Tribunal of the IMF)* ### 1. When the Fund has established channels of administrative ### When the Fund has established channels of administrative review ### Exhaustion of administrative review (Article V) - An application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review. - Where available channels include a Fund procedure for complaints and grievances of individual staff members, administrative review is exhausted when any of the following occurs: - three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted; - a decision denying the relief requested has been notified to the applicant; or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - Where available channels do not include the grievance procedure described above, a channel of administrative review is exhausted when any of the following occurs: - three months have elapsed since the request for review was made and no decision stating that the relief requested would be granted has been notified to the applicant; - a decision denying the relief requested has been notified to the applicant; or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - All channels of administrative review shall be deemed to have been exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal. ### Time limits for filing (Article VI) - An application challenging the legality of an individual decision shall not be admissible if filed with the Tribunal more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision. - An application challenging the legality of a regulatory decision shall not be admissible if filed with the Tribunal more than three months after the announcement or effective date of the decision, whichever is later. - The illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision. - Explanatory examples and clarifications: - The three-month filing period for individual decisions does not include time required for administrative review; it begins to run only after administrative review is fully exhausted and the Managing Director has decided whether to implement the internal committee's recommendation. - Under the current rules of the Grievance Committee, grievants have up to one year from the event giving rise to the grievance to bring an action; this year-long period precedes the three-month statute of limitations for the Tribunal. - The comparable period in other international administrative tribunals is generally 60 days or 90 days; except in cases of death, the statute of limitations in other tribunals does not exceed 90 days. - Illustration: If, on January 2, the Grievance Committee made a recommendation to the Managing Director, the three-month period prescribed in Article V, Section 2 would run from January 3 to April 2, inclusive. The applicant would then have three months, i.e., from April 3 to July 2, to file with the Tribunal. If a favorable decision were received on April 2 but relief not provided by June 2, the applicant would have three months, i.e., from June 3 to September 2, to bring an action. - If a response denying the request was received before the end of the administrative period, the three-month period for filing runs from the date of receipt. Example: if the response was received on March 19, the application could be filed until June 20, inclusive. ### Tribunal discretion and procedural effects - In exceptional circumstances, the Tribunal may decide at any time to waive the time limits prescribed under Sections 1 or 2 of Article VI if it considers the delay justified (examples: extensive mission travel, prolonged illness, or other exigent personal circumstances). - A waiver may be requested before the deadline or after the deadline; the Tribunal must find the delay justified under the circumstances. - The filing of an application does not suspend the implementation of the decision contested. - The rule is intended to prevent disruption of day-to-day administration and to preserve the effectiveness of disciplinary measures, including removal. - The statute does not preclude the Tribunal from ordering interim measures if warranted by particular circumstances. - No application may be filed or maintained after the applicant and the Fund have reached an agreement on the settlement of the dispute giving rise to the application. ### Interaction of individual and regulatory challenges - Regulatory decisions may be challenged directly within three months of their announcement or effective date. - The legality of a regulatory decision may be raised at any time in support of an admissible challenge to an individual decision taken pursuant to that regulatory decision, subject to timely-filing rules for individual decisions. - Where an applicant challenges an individual decision on grounds that include both incorrect application of a regulation and illegality of the regulation itself: - The Grievance Committee would first decide issues within its jurisdiction (interpretation or application). - If the Grievance Committee rejects the case, the staff member may proceed to the Tribunal and may raise the legality of the underlying regulatory decision even if more than three months have passed since the regulatory decision was enacted. - Pursuit of administrative remedies on interpretation/application suspends the time period for seeking review of issues for which no administrative review is available. ### Tribunal membership, appointment, and independence (Articles VII–VIII) - Appointment and qualifications: - The President shall be appointed for two years by the Managing Director after consultation with the Staff Association and with the approval of the Executive Board; the President shall have no prior or present employment relationship with the Fund. - Two associate members and two alternates, who have no prior or present employment relationship with the Fund, shall be appointed for two years by the Managing Director after appropriate consultation. - The President and the associate members and their alternates must be nationals of a member country of the Fund at the time of their appointments and must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. - Terms, reappointment, replacement, and recusal: - The President and the associate members and their alternates may be reappointed in accordance with the appointment procedures. - A member appointed to replace a member whose term has not expired shall hold office for the remainder of the predecessor’s term. - Any member who has a conflict of interest in a case shall recuse himself. - Decisions shall be taken by the President and the associate members; if an associate member is unable to hear a case, an alternate shall be designated by the President; if the President is unable to hear a case, the elder of the associate members shall act as President and shall be replaced by an alternate as associate member. - The Managing Director shall terminate the appointment of a member who, in the unanimous opinion of the other members, is unsuited for further service. - Independence and status: - Members of the Tribunal shall be completely independent in the exercise of their duties; they shall not receive any instructions or be subject to any constraint. - In the performance of their functions, members shall be considered as officers of the Fund for purposes of the Articles of Agreement of the Fund. - Members would thereby receive the privileges and immunities enjoyed by officers and employees of the Fund under Article IX, Section 8 of the Articles of Agreement, including immunity from judicial process, to ensure independence and impartiality and to provide grounds for dismissal, on immunity grounds, of any lawsuit brought in a national court by an unsuccessful applicant concerning a member’s official duties. *Report of the Executive Board, Administrative Tribunal of the IMF* ### 1. The Managing Director shall make the administrative arrange- ### imfat-4 - 1. The Managing Director shall make the administrative arrange- ### Administrative support and confidentiality - The Managing Director shall make the administrative arrangements necessary for the functioning of the Tribunal. - The Managing Director shall designate personnel to serve as a Secretariat to the Tribunal. - Secretariat personnel, in the discharge of duties hereunder, shall be under the authority of the President and shall not, at any time, disclose confidential information received in the performance of their duties. - The Fund shall bear the expenses of the Tribunal, including fees paid to and expenses incurred by the President and the associate members in connection with the performance of their duties. - Commentary notes: - Secretariat personnel are to act under the direction of the President and be independent from the Fund in the performance of their duties. - Personnel must refrain from disclosing confidential information both outside and within the Fund; personnel information is available only on a need-to-know basis. - Administrative tribunals are usually serviced by a small secretariat. ### Document production, Rules of Procedure, and assistance by counsel (Article X and Section 3) - Document production and evidentiary matters: - The Tribunal may require the production of documents held by the Fund. - The Managing Director may withhold evidence if he determines that introduction might hinder the operation of the Fund because of the secret or confidential nature of the document. - Such a determination by the Managing Director shall be binding on the Tribunal. - If the Managing Director withholds a document and the applicant alleges the document’s contents, the applicant’s allegations shall be deemed to have been demonstrated in the absence of probative evidence to the contrary (i.e., prima facie evidence and a rebuttable presumption). - The Tribunal may examine witnesses and experts, subject to the same qualification. - In practice, administrative tribunals generally rely largely on written evidence and pleadings. - Rules of Procedure: - Subject to the Statute, the members of the Tribunal shall, by majority vote, establish the Tribunal’s Rules of Procedure. - The Rules of Procedure shall include provisions concerning: - presentation of applications and the procedure to be followed in respect to them; - intervention by persons to whom the Tribunal is open under Section 1 of Article II, whose rights may be affected by the judgment; - presentation of testimony and other evidence; - summary dismissal of applications without disposition on the merits; - other matters relating to the functioning of the Tribunal. - Rules are adopted by a majority of the entire membership (the President, the associate members, and their alternates). - The Tribunal may adopt rules addressing filing procedures, obtaining information, presentation of cases, participation of amicus curiae, availability of judgments, and procedures for summary dismissal. - Assistance by counsel (Article X, Section 3): - Each party may be assisted in the proceedings by counsel of his choice, other than members of the Fund’s Legal Department, and shall bear the cost thereof, subject to the provisions of Article XIV, Section 4 and Article XV. - The Tribunal may prescribe rules on signing of applications, presentation of oral argument, and other matters concerning counsel. ### Sessions and oral proceedings (Articles XI and XII) - Sessions: - The Tribunal shall hold its sessions at the Fund’s headquarters at dates to be fixed in accordance with its Rules of Procedure. - The frequency and scheduling of sessions are to be determined by Tribunal rules. - Oral proceedings: - The Tribunal shall decide in each case whether oral proceedings are warranted. - Oral proceedings shall be open to all interested persons, unless the Tribunal decides that exceptional circumstances require that they be held in private. - Oral proceedings are relatively rare in international administrative tribunals, which generally decide cases on the basis of written submissions and the administrative record. ### Decisions, deliberations, and finality (Article XIII) - Decision-making: - All decisions of the Tribunal shall be by majority vote. - Judgments shall be final, subject to Article XVI and Article XVII, and without appeal. - Each judgment shall be in writing and shall state the reasons on which it is based. - The deliberations of the Tribunal shall be confidential. - Commentary notes: - Dissents need not be registered, but dissenting opinions would be possible. - Further recourse to the International Court of Justice would not be available; other tribunals’ limited ICJ appeal avenues were not adopted. ### Remedies and compensation (Article XIV) - Remedies where an individual decision is illegal: - If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision. - Managing Director option and compensation limits (Article XIV, Section 2): - When prescribing nonmonetary measures, the Tribunal shall fix an amount of compensation to be paid to the applicant should the Managing Director, within one month of the notification of the judgment, decide, in the interest of the Fund, that such measures shall not be implemented. - The amount of such compensation shall not exceed the equivalent of three hundred percent (300%) of the current or, as the case may be, last annual salary of such person from the Fund. - The Tribunal may, in exceptional cases, when it considers it justified, order the payment of a higher compensation; a statement of the specific reasons for such an order shall be made. - Commentary examples: - If the Tribunal prescribes reinstatement but the Managing Director concludes reinstatement is not possible or advisable (e.g., position filled), monetary compensation up to 300% of salary could be paid instead. - The Tribunal could exceed the 300% limit in exceptional justified cases. - Annulment of regulatory decisions (Article XIV, Section 3): - If the Tribunal concludes that an application challenging the legality of a regulatory decision is well-founded, it shall annul such decision. - Any individual decision adversely affecting a staff member taken before or after the annulment and on the basis of such regulatory decision shall be null and void. - Consequences: - Annulment renders the regulatory decision unenforceable against the applicant in the immediate case and nullifies individual decisions taken pursuant to it. - The Fund must take corrective measures for each adversely affected staff member; failure to do so can itself be challenged. - A regulatory decision in effect by the organization for over three months is not directly challengeable as a regulatory decision; challenges to regulatory decisions primarily arise in the context of individual decision review. - Commentary on remedies: - Section 1 orders rescission and corrective measures, which may include payment of money or specific performance such as reinstatement. - Section 2 allows the Managing Director to opt for monetary compensation in lieu of nonmonetary relief. ### Costs and awards of fees (Article XIV, Section 4 and Article XV commentary) - Allocation of costs where application is successful: - If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant’s counsel, be totally or partially borne by the Fund. - The Tribunal shall take into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates. - Examples of costs: transportation to Washington, D.C. for applicants not working at Fund headquarters; fees of expert witnesses. - The Tribunal would be expected to be conservative and exercise discretion in awarding costs. - Allocation of costs where applicant is unsuccessful or claims are manifestly without foundation: - Under Article XV, the Tribunal could award reasonable costs against an applicant whose claims were manifestly without foundation. - General principles and practice: - As a general rule, each side bears its own costs, including attorney’s fees; exceptions are authorized where the applicant succeeds in whole or in part (award to applicant) or where claims are manifestly without foundation (award against applicant). - The Tribunal has discretion to assess whether costs are reasonable and proportionate to the issues, reflecting the practice of other tribunals and domestic courts. - The Tribunal may recommend ex gratia payments in circumstances where unsuccessful applicants had prima facie merit or significance. *Report of the Executive Board, Administrative Tribunal of the IMF* ### 5. When a procedure prescribed in the rules of the Fund for the ### imfat-4 - 5. When a procedure prescribed in the rules of the Fund for the taking of a decision has not been observed ### Adjournment and corrective measures (Article XIV, Section 5) - The Tribunal may, at the request of the Managing Director, adjourn proceedings for: - institution of the required procedure; or - adoption of appropriate corrective measures. - The Tribunal shall establish a time certain for such adjournment. - Section 5 of Article XIV permits corrective measures in respect of procedural errors committed by the Fund to be implemented after adjournment of a case in lieu of proceeding to decision on the merits. ### Award of costs and deterrence of frivolous or abusive applications (Article XV) - The Tribunal may order that reasonable compensation be made by the applicant to the Fund for all or part of the cost of defending the case if it finds that: - a. the application was manifestly without foundation either in fact or under existing law, unless the applicant demonstrates that the application was based on a good faith argument for an extension, modification, or reversal of existing law; or - b. the applicant intended to delay the resolution of the case or to harass the Fund or any of its officers or employees. - The amount awarded by the Tribunal shall be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may, in particular cases, waive the claim of the Fund against the applicant. - The Report of the Executive Board explains: - The award of costs would not include the expenses incurred by the Fund in the operation of the tribunal. - Collection could be through deductions from amounts owed by the Fund to the applicant (such as salary or separation payments) or through other means if the applicant is not owed any money by the Fund. - The provision is intended to deter pursuit of cases manifestly without factual basis or legal merit and to address abuse of the review process. - The tribunal must hear and dispose of matters on the merits unless an application is summarily dismissed; summary dismissal could minimize time and expense. ### Revision, correction, and interpretation of judgments (Articles XVI–XVII) - Article XVI: - A party may request revision of a delivered judgment within a period of six months after that party acquired knowledge of a discovered fact which by its nature might have had a decisive influence on the judgment, provided that fact was unknown to both the Tribunal and that party when the judgment was delivered. - Purpose: prevent presentation after decision of material facts known before decision; permit reopening if a material fact is discovered after decision. - Article XVII: - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. - The Tribunal may act on its own initiative or upon application by a party. - The authority to interpret its own judgments helps ensure judgments are given effect in accordance with the Tribunal’s findings. ### Publication and confidentiality of judgments (Article XVIII) - Original of each judgment shall be filed in the archives of the Fund. - A copy of the judgment, attested by the President, shall be delivered to each party concerned. - A copy shall be made available by the Secretariat on request to any interested person, subject to the President’s decision to delete identities or other means of identification of the applicant or other persons mentioned in the judgment to protect privacy or confidentiality. - Judgments are to be in the public domain and may be cited or published, with identity-protection measures as needed. ### Amendment authority (Article XIX) - The Statute may be amended only by the Board of Governors of the Fund. - The Board of Governors, as the organ that authorized establishment and approved the Statute, may amend or abrogate the Statute, thereby limiting or altering the Tribunal’s judicial function with respect to future cases. ### Temporal jurisdiction and transitional arrangements (Article XX) - The Tribunal shall not be competent to pass judgment on any application challenging the legality of an administrative act taken before October 15, 1992, even if administrative review channels were exhausted only after that date. - Decisions taken between October 15, 1992 and the establishment of the Tribunal are admissible only if the application is filed within three months after establishment of the Tribunal. - For this provision, the Tribunal is deemed established when the staff has been notified by the Managing Director that all members have been appointed. - Practical effect described: - The Tribunal reviews only decisions taken on or after the effective starting date of the Tribunal’s jurisdiction. - Administrative acts taken before October 15, 1992 are not reviewable. - Section 2 provides a transitional extension of the initiation period in Article VI of the Statute. ### Affiliation of other international organizations (Article XXI) - The Tribunal’s competence may be extended to any international organization upon terms established by a special agreement with the Fund. - Each special agreement shall provide: - the organization shall be bound by the Tribunal’s judgments and be responsible for payment of any compensation awarded in respect of a staff member of that organization; - provisions concerning the organization’s participation in administrative arrangements for the Tribunal’s functioning and sharing of the Tribunal’s expenses. - An affiliating organization would not have authority over appointment of Tribunal members or amendment of the Statute. ### Adoption procedure, resolution, and voting timetable - The Executive Board recommended the Statute enter into force as of October 15, 1992, the date on which the Executive Board formally decided to transmit the report and resolution to the Board of Governors. - The Executive Board requested Governors to vote without meeting pursuant to Section 13 of the By-Laws, with votes to be received at the seat of the Fund before 6:00 p.m., Washington time, on December 21, 1992. - The resolution will be adopted if replies are received from a majority of the Governors exercising a majority of the total voting power and if a majority of the votes is cast in favor of the resolution. - The resolution must be voted on as a whole. - The Report of the Executive Board included the text of a resolution proposing adoption of the Statute and transmitted it to the Board of Governors at the Chairman’s request. ### Rules of Procedure (selected provisions) — entry into force and core rules - The Rules entered into force on February 18, 1994 and were amended on August 31, 1994. - Rule I (General): - Rules apply to the Administrative Tribunal of the International Monetary Fund. - Rules are subject to: (a) the Fund’s Articles of Agreement; (b) the Statute of the Tribunal. - Rule II: - The working language of the Tribunal shall be English. - Rule III (President): - The President shall: (a) preside over consideration of cases; (b) direct the Registry; (c) prepare an annual report on activities; (d) perform functions entrusted by the Rules. - Rule IV (Registry): - Under the President, the Registrar shall: receive applications and related documentation; transmit documents and notifications; make a dossier recording all actions and dates; attend hearings, meetings, and deliberations; keep minutes as instructed; expeditiously perform functions and tasks assigned by the President. - Rule V (Recusal): - A member shall recuse himself when: (a) personal, familial or professional relationship with persons in the case; (b) previously called upon in another capacity (advisor, representative, expert, or witness); (c) other circumstances making participation seem inappropriate. - Any member recusing himself shall immediately inform the President. - Rule VI (Counsel): - Each party may at any time choose to be assisted by counsel, whose designation shall be notified to the Registrar. - Rule VII (Applications): - Applications shall be filed by the Applicant or duly authorized representative, following the form attached as Annex A; representation form is Annex B. - Applications must contain: - (a) name and official status of the Applicant; - (b) name of the Applicant’s representative, if any, and whether such representative or another person shall act as counsel; - (c) the decision being challenged, and the authority responsible for the decision; - (d) the channels of administrative review pursued and results thereof; - (e) reasons why the decision is illegal; - (f) a statement of supporting facts; and - (g) the relief or remedy sought, including the amount of compensation, if any, and specific performance requested. - Applicant shall attach as annexes all documents cited in original or unaltered copies and complete text unless obviously irrelevant; include copy of any Grievance Committee report and recommendation; non-English documents require English translations. - Four additional copies of the application and attachments shall be submitted to the Registrar. - An application shall satisfy Article XX and be submitted within the time limits prescribed by Article VI of the Statute. *Report of the Executive Board; Rules of Procedure (1994), Administrative Tribunal of the IMF* ### 6. If the application does not fulfill the requirements established in ### imfat-4 - 6. If the application does not fulfill the requirements established in ### Application deficiencies and Registrar actions (Rule VII, paras. 6–8) - If an application fails to meet the requirements of Paragraphs 1 through 4, the Registrar shall: - advise the Applicant of the deficiencies and give him a reasonable period of time, not less than fifteen days, to make corrections or additions. - if corrections are made within that period, the application is considered filed on the original date. - If the Applicant does not correct within the initial period, the Registrar shall: - (i) notify the Applicant that the period for changes has been extended, indicating the length of the extension; - (ii) make necessary corrections when defects do not affect the substance; or - (iii) by order of the President, notify the Applicant that the submission does not constitute an application and cannot be filed as such. - Upon ascertaining that formal requirements are met, the Registrar shall notify the Fund of the application and transmit a copy to the General Counsel. - The application must be signed on the last page by the Applicant or the designated representative; if the Applicant is incapacitated, the signature shall be furnished by his legal representative. ### Answer by the Fund (Rule VIII) - Once notified by the Registrar, the Fund shall answer in writing and submit any additional documentary evidence within forty-five days unless the President sets another time limit. - The Fund’s answer shall be submitted to the Tribunal and to the Applicant through the Registrar. - The Fund shall include as annexes all documents referred to in the answer in accordance with Rule VII. - The answer shall be signed on the last page by the representative of the Fund. - Four additional copies of the answer and attachments shall be submitted to the Registrar. - Upon ascertaining that formal requirements are met, the Registrar shall transmit a copy of the Fund’s answer to the Applicant. ### Reply by the Applicant (Rule IX) - The Applicant may file a written reply with the Registrar within thirty days from the date on which the answer is transmitted, unless the President sets another time limit. - The complete text of any document referred to in the reply shall be annexed in accordance with Rule VII. - The requirements of Rule VII, Paragraphs 4 and 8, apply to the reply. - Upon ascertaining formal requirements are met, the Registrar shall transmit a copy of the Applicant’s reply to the Fund. ### Rejoinder by the Fund (Rule X) - The Fund may file a written rejoinder within thirty days of receiving the Applicant’s reply, unless the President sets another time limit. - The complete text of any document referred to in the rejoinder shall be annexed in accordance with Rule VII. - The requirements of Rule VIII, Paragraphs 2 and 3, apply to the rejoinder (signature and additional copies). - Upon ascertaining formal requirements are met, the Registrar shall transmit a copy of the Fund’s rejoinder to the Applicant. - After the rejoinder has been filed, no further pleadings may be received, without prejudice to Rule XI. ### Additional pleadings (Rule XI) - In exceptional cases, the President may, on his own initiative or at a party’s request, call upon the parties to submit additional written statements or documents within a period fixed by the President. Additional documents must be original or unaltered copies and accompanied by necessary translations. - The requirements of Rule VII, Paragraphs 4 and 8, or Rule VIII, Paragraphs 2 and 3, as applicable, shall apply to additional submissions. - The Registrar shall transmit written statements and additional documents, on receipt, to the other party or parties. ### Summary dismissal (Rule XII) - Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is clearly inadmissible. - The Fund may file such a motion within thirty days of receipt of the application. Filing the motion suspends the period for answering until the motion is acted on by the Tribunal. - The complete text of any document referred to in the motion shall be annexed per Rule VII. The requirements of Rule VIII, paragraphs 2 and 3, apply to the motion. - Upon ascertaining formal requirements are met, the Registrar shall transmit a copy of the motion to the Applicant. - The Applicant may file a written objection to the motion within thirty days from transmission. - Documents referred to in the objection shall be annexed per Rule VII. The requirements of Rule VII, Paragraphs 4 and 8, apply to the objection. - Upon ascertaining formal requirements are met, the Registrar shall transmit a copy of the objection to the Fund. - There shall be no further pleadings concerning a motion for summary dismissal unless the President so requests. ### Oral proceedings (Rule XIII) - Oral proceedings shall be held if the Tribunal decides they are necessary; the Tribunal shall hear oral arguments of the parties and their counsel and may examine them. - Before oral proceedings, each party shall inform the Registrar and, through him, the other parties, of the names and description of witnesses and experts to be heard, indicating the points to which evidence will refer. The Tribunal may also call witnesses and experts. - The Tribunal decides on applications to hear witnesses or experts and determines, in consultation with parties or counsel, the sequence of oral proceedings. - If a witness cannot appear, the Tribunal may decide that the witness shall reply in writing to parties’ questions; parties retain the right to comment on written replies. - Parties or their counsel may, under the President’s direction, put questions to witnesses and experts; the Tribunal may also examine them. - Witness declaration: “I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth.” - Expert declaration: “I solemnly declare upon my honor and conscience that my testimony will be in accordance with my sincere belief.” - The Tribunal may disregard evidence considered irrelevant, frivolous, or lacking probative value. - The Tribunal may limit oral testimony where it considers written documentation adequate. - The President may issue orders and decide matters necessary for orderly disposition of cases, including rulings on objections concerning witness examination or documentary evidence. ### Intervention (Rule XIV) - Any person to whom the Tribunal is open under Article II, Section 1 of the Statute may, before closure of written pleadings, apply to intervene on the ground that he has a right which may be affected by the judgment. - Rules regarding preparation and submission of applications apply mutatis mutandis to applications for intervention. - Upon ascertaining formal compliance, the Registrar shall transmit a copy of the application for intervention to the Applicant and to the Fund; each may present views on intervention within thirty days. - Upon expiration of that thirty-day deadline, the President, in consultation with other Tribunal members, shall decide whether to grant intervention. If admitted, the intervenor participates as a party. - To inform the Fund community of proceedings pending before the Tribunal, the Registrar, upon notification of an application to the Fund, shall, unless the President decides otherwise, issue a summary of the application, without disclosing the Applicant’s name, for circulation within the Fund. ### Amicus curiae (Rule XV) - The Tribunal may, at its discretion, permit any persons, including duly authorized representatives of the Staff Association, to communicate their views to the Tribunal. ### Time limits (Rule XVI) - Calculation of time limits uses calendar days, excludes the day of the event from which the period runs, and includes the next working day of the Fund when the last day falls on a non-working day. ### Production of documents (Rule XVII) - The Applicant may, before closure of pleadings, request the Tribunal to order production of documents or other evidence to which he has been denied access by the Fund, accompanied by relevant documentation of the request and the denial; the Fund shall have an opportunity to present its views. - The Tribunal may reject requests for documents that are clearly irrelevant, unduly burdensome to produce, or that would infringe individual privacy. For privacy assessments, the Tribunal may examine documents in camera. - Subject to Article X, Section 1 of the Statute, the Tribunal may order production of documents or other evidence in the Fund’s possession and may request information it deems useful to its judgment. - When the Tribunal is not in session, the President shall exercise the powers set forth in this Rule. ### Judgments (Rule XVIII) - All deliberations of the Tribunal are private. Judgments are adopted by majority vote. - Once the final text is approved and adopted, the judgment shall be signed by the President and the Registrar and shall contain the names of members who took part in the decision. - Any member differing as to the grounds or conclusions may append a separate or dissenting opinion. - The judgment and any appended opinions shall be transmitted to the parties and to amici curiae. They shall be available to interested persons upon request to the Registrar, who shall arrange for their publication. - Clerical and arithmetical errors in judgments may be corrected by the Tribunal. ### Revision of judgments (Rule XIX) - A party may request revision of a judgment only if a fact or document is discovered which might have had a decisive influence on the judgment and was unknown to the Tribunal and the requesting party at the time, and such ignorance was not the party’s responsibility. - The revision must be requested within thirty days from discovery and, in any event, within one year from the date on which the party was notified of the judgment unless the President sets another time limit. - The procedures in Rules VIII through XI apply, mutatis mutandis, to revision requests. - The Tribunal shall decide whether to admit the request for revision; if admitted, the Tribunal shall pass judgment on the matter in accordance with these Rules. ### Interpretation of judgments (Rule XX) - After a judgment has been rendered, a party may apply to the Tribunal requesting an interpretation of the operative provisions of the judgment per Article XVII of the Statute. - The application is admissible only if it states with sufficient particularity in what respect the operative provisions appear obscure or incomplete. - The Tribunal shall give the other party or parties a reasonable opportunity to present views and decide whether to admit the application; if admitted, the Tribunal shall issue its interpretation, which becomes part of the original judgment. ### Miscellaneous provisions (Rule XXI) - The President, in consultation with other Tribunal members, fixes dates of Tribunal sessions. - The Tribunal, or when not in session the President after consultation where appropriate, may in exceptional cases modify application of these Rules, including time limits. - The Tribunal, or when not in session the President, may deal with matters not expressly provided for in these Rules. *Administrative Tribunal of the International Monetary Fund* ### 1. In accordance with Article VII, Section 3 of the Statute, a member ### Rules of Procedure (2004) ### Recusal (Article VII, Section 3) - A member of the Tribunal shall recuse himself: - (a) in cases involving persons with whom the member has a personal, familial or professional relationship; - (b) in cases concerning which he has previously been called upon in another capacity, including as advisor, representative, expert or witness; or - (c) if there exist other circumstances such as to make the member’s participation seem inappropriate. - Any member recusing himself shall immediately inform the President of the Tribunal. ### Representation (Article X, Section 3) - Each party may at any time choose to be assisted by counsel or other representative, whose designation shall be notified to the Registrar. ### Application (Rule VII) - An application shall be filed by the Applicant or his duly authorized counsel or other representative, following the form attached as Annex A; if represented, the Applicant shall also complete the form attached as Annex B. - Each application shall contain: - (a) the name and official status of the Applicant; - (b) the name of the Applicant’s counsel or other representative, if any; - (c) the decision being challenged, and the authority responsible for the decision; - (d) the channels of administrative review, as applicable, that the Applicant has pursued and the results thereof; - (e) the reasons why he believes the decision is illegal; - (f) a statement of the supporting facts; - (g) the relief or remedy being sought pursuant to Article XIV of the Statute, including (i) the amount of compensation, if any, claimed by the Applicant or the specific performance of any obligation which is requested, or both, (ii) in a case where measures other than the payment of money are sought, any exceptional circumstances that would warrant the fixing of the amount greater than three hundred percent (300%) of salary in accordance with Article XIV, Section 2, and (iii) costs as the Tribunal may award pursuant to Article XIV, Section 4; - (h) any request for production of documents as provided by Article X of the Statute and Rule XVII below; - (i) any request for oral proceedings as provided by Article XII of the Statute and Rule XIII below; and - (j) any request for anonymity as provided by Rule XXII below. - Attachments and formalities: - The Applicant shall include as attachments all documents cited in the application in an original or unaltered copy and in a complete text unless part is obviously irrelevant; non-English documents require a certified English translation. - The Applicant shall attach a copy of any report and recommendation of the Grievance Committee in the matter. - (a) The application shall be signed on the last page by the Applicant or his counsel/representative; in event of the Applicant’s incapacity, signature by legal representative is required. - (b) Four additional copies of the application and its attachments shall be submitted to the Registrar. - Evidence of compliance: - An application shall include evidence that the Applicant has satisfied the requirements of Article V and that the application is being submitted within the time limits prescribed by Article VI. - Deficiencies and filing date: - If requirements are not fulfilled, the Registrar shall advise the Applicant and give a reasonable period to correct; if corrected within the period, the application is considered filed on the original date. - Otherwise the Registrar shall either (a) notify the Applicant of any extension and its length, (b) make necessary corrections when defects do not affect substance, or (c) by order of the President, notify that the submission does not constitute an application and cannot be filed. - Upon ascertaining formal requirements are met, the Registrar shall transmit a copy of the application to the Fund. ### Answer (Rule VIII) - Timing and form: - The Fund shall answer the application within forty-five days of receipt unless, upon request, the President sets another time limit. - The Fund’s answer shall be submitted to the Tribunal and to the Applicant through the Registrar and signed on the last page by the representative of the Fund. - Four additional copies of the answer and its attachments shall be submitted to the Registrar. - Attachments: - The Fund shall include as attachments all documents referred to in the answer in accordance with Rule VII unless already attached to the application (in which case reference to attachment number). - Transmission and content: - Upon meeting formal requirements the Registrar shall transmit a copy of the Fund’s answer to the Applicant; if not met, Rule VII, Paragraph 6 applies mutatis mutandis. - The Fund shall include in the answer its views on any requests for production of documents, oral proceedings, or anonymity that the Applicant included in the application and may include its own requests on those matters. ### Reply (Rule IX) and Rejoinder (Rule X) - Reply (Applicant): - The Applicant may file a reply within thirty days from receipt of the answer unless the President sets another time limit. - Complete texts of documents referred to in the reply shall be attached per Rule VII unless previously attached. - Rule VII, Paragraph 4 requirements apply to the reply. - Upon meeting formal requirements the Registrar shall transmit a copy of the reply to the Fund; if not met, Rule VII, Paragraph 6 applies mutatis mutandis. - If seeking costs pursuant to Article XIV, Section 4, the amount and supporting documentation shall be included. - The Applicant shall include his views on any requests the Fund made in its answer with respect to oral proceedings, anonymity or other matters. - Rejoinder (Fund): - The Fund may file a rejoinder within thirty days from receipt of the reply unless the President sets another time limit. - Complete texts of documents referred to shall be attached per Rule VII unless previously attached. - Requirements of Rule VIII, Paragraphs 2 and 3 apply to the rejoinder. - Upon meeting formal requirements the Registrar shall transmit a copy of the rejoinder to the Applicant; if not met, Rule VII, Paragraph 6 applies mutatis mutandis. - After the rejoinder has been filed, no further pleadings shall be received without prejudice to Rule XI. - The Fund shall include in the rejoinder its response to any requests for costs or other matters included by the Applicant in the reply. ### Additional Pleadings (Rule XI) and Summary Dismissal (Rule XII) - Additional Pleadings: - In exceptional cases, the President may, on his own initiative or at the request of a party, call upon the parties to submit additional written statements or documents within a fixed period; additional documents must be original or unaltered copies with certified translations as necessary. - Formal signature and copy requirements per Rule VII or Rule VIII apply to additional submissions. - Written statements and additional documents shall be transmitted by the Registrar to the other parties upon receipt. - Summary Dismissal: - Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is clearly inadmissible. - The Fund may file such a motion within thirty days of its receipt of the application; filing the motion suspends the period for answering until the motion is acted on. - Complete texts of documents referred to in the motion shall be attached per Rule VIII; Rule VII, Paragraph 6 applies mutatis mutandis if requirements are unmet. - Upon meeting formal requirements the Registrar shall transmit a copy to the Applicant. - The Applicant may file an objection to the motion within thirty days from receipt. - Complete texts for the objection shall be attached per Rule IX; Rule VII, Paragraph 4 applies to the objection. - Upon meeting formal requirements the Registrar shall transmit a copy of the objection to the Fund. - There shall be no further pleadings on a motion for summary dismissal unless the President so requests. ### Oral Proceedings (Rule XIII) - Conditions and openness: - Oral proceedings shall be held if the Tribunal deems them useful, on its own initiative or at a party’s request after opportunity for opposing party to present views pursuant to Rules VII–X. - The Tribunal shall hear the oral arguments of the parties and their counsel or representatives and may examine them. - Oral proceedings shall be open to all interested persons unless the Tribunal decides exceptional circumstances require they be held in private (Article XII). - Witnesses and experts: - At a time specified by the President before commencement, each party shall inform the Registrar and other parties of the names and description of any witnesses and experts the party desires to be heard, indicating the points to which the evidence pertains; the Tribunal may also call witnesses and experts. - The Tribunal shall decide on applications for hearing witnesses or experts and determine sequence of oral proceedings; where a witness cannot appear, the Tribunal may require written answers to questions; parties retain right to comment on written replies. - Parties or their counsel may, under the President’s direction, put questions to witnesses and experts; the Tribunal may also examine them. - Declarations: - Each witness shall declare: “I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth.” - Each expert shall declare: “I solemnly declare upon my honor and conscience that my testimony will be in accordance with my sincere belief.” - Procedural control: - The President may issue orders necessary for orderly disposition of cases, including ruling on objections concerning examination of witnesses or documentary evidence. - The Tribunal may limit oral proceedings to oral arguments where the written evidentiary record is adequate. ### Intervention (Rule XIV) and Amicus Curiae (Rule XV) - Intervention: - Any person to whom the Tribunal is open under Article II, Section 1 of the Statute may, within thirty days of issuance of the notice prescribed by Paragraph (f) of Rule IV (and, in exceptional circumstances, thereafter up until the closure of the written pleadings on petition to the President), apply to intervene on the ground that he has a right which may be affected by the judgment. - Rule VII applies mutatis mutandis to applications for intervention. - Upon compliance with formal requirements, the Registrar shall transmit the application for intervention to the Applicant and the Fund, each entitled to present views within thirty days; the President may suspend exchange of pleadings until admissibility is decided. - Upon expiration of the thirty-day period the Tribunal shall decide whether to grant intervention; if admitted, the intervenor participates as a party and the pleadings schedule is modified. - The Tribunal may invite participation as an intervenor of any person to whom it is open under Article II, Section 1 if a right may be affected; views of Applicant and Fund may be sought. - Amicus Curiae: - The Tribunal may permit any person or persons, including duly authorized representatives of the Staff Association, to communicate views as amici curiae. - The Tribunal may permit an amicus curiae access to the pleadings of the parties and shall enable the parties to submit timely observations on an amicus brief. ### Time Limits (Rule XVI) - Calculation rules: - Time limits refer to calendar days, shall not include the day of the event from which the period runs, and shall include the next working day of the Fund when the last day is not a working day. - For determining whether time limits have been met, the date of dispatch (postal service or courier), when accompanied by proof, shall be accepted as the date of filing as if filed by hand delivery to the Office of the Registrar. - In exceptional circumstances, filing by means other than postal service, courier or hand may be permitted by the Registrar in consultation with the President. ### Production of Documents (Rule XVII, Article X) - Applicant’s request: - The Applicant may request the Tribunal to order production of documents or other evidence which he has requested and to which he has been denied access by the Fund; the request shall contain reasons and accompanying documentation. - The Fund shall be given opportunity to present views pursuant to Rule VIII, Paragraph 5. - Grounds for rejection: - The Tribunal may reject the request if documents are irrelevant, compliance would be unduly burdensome, or would infringe on the privacy of individuals; the Tribunal may examine documents in camera. - Ordering production: - The Tribunal may, subject to Article X, Section 1 of the Statute, order production of documents or other evidence in the Fund’s possession and may request information it deems useful within a time period provided in the order. - The President may decide to suspend or extend time limits for pleadings to account for such an order. ### Judgments (Rule XVIII, Article XIII and Article XVII) - Deliberations and adoption: - All deliberations of the Tribunal shall be confidential. - The judgment shall be adopted by majority vote. - Form and publication: - Once final text is approved and adopted, the judgment shall be signed by the President and the Registrar and shall contain the names of the members who took part in the decision. - Any member differing on grounds or conclusions may append a separate or dissenting opinion. - The judgment and any appended opinions shall be transmitted to the parties and to amici curiae; the Registrar shall notify the Fund community of the judgment and any appended opinions and shall arrange for their expeditious publication. - Corrections: - Clerical and arithmetical errors in the judgment may be corrected by the Tribunal in accordance with Article XVII of the Statute. *Administrative Tribunal of the IMF, Rules of Procedure (2004).* ### 1. In accordance with Article XVI of the Statute, a party may request ### imfat-4 - 1. In accordance with Article XVI of the Statute, a party may request ### Revision (Article XVI) - A party may request revision of a judgment issued by the Tribunal only if: - a fact or a document is discovered which by its nature might have had a decisive influence on the judgment of the Tribunal; and - at the time of the judgment the fact or document was unknown to the Tribunal and to the party making the application for the revision; and - such ignorance was not the responsibility of that party. - Time limits for requesting revision: - The revision must be requested within six months from the date on which the fact or document is discovered. - In any event, the revision must be requested within one year from the date on which the party requesting the revision was notified of the judgment, unless, upon request, the President sets another time limit. - Procedure: - The procedure set forth in Rules VII through XI shall be applied, mutatis mutandis, to the request for revision. ### Interpretation of Judgments (Rule XX; Article XVII) - A party may apply to the Tribunal requesting an interpretation of the operative provisions of the judgment after a judgment has been rendered. - Admissibility: - The application shall be admissible only if it states with sufficient particularity in what respect the operative provisions of the judgment appear obscure or incomplete. - Tribunal action: - The Tribunal shall give the other party or parties a reasonable opportunity to present views. - The Tribunal shall decide whether to admit the application for interpretation. - If admitted, the Tribunal shall issue its interpretation, which shall thereupon become part of the original judgment. ### Miscellaneous Provisions (Rule XXI) - Session scheduling: - The President shall, in consultation with the other members of the Tribunal, fix the dates of the Tribunal’s sessions. - Exceptional modifications: - The Tribunal, or when the Tribunal is not in session, the President after consultation where appropriate with the members of the Tribunal, may in exceptional cases modify the application of these Rules, including any time limits thereunder. - Matters not expressly provided for: - The Tribunal or, when the Tribunal is not in session, the President may deal with any matter not expressly provided for in the present Rules. ### Anonymity (Rule XXII) - Requests for anonymity: - An Applicant may request in his application that his name not be made public by the Tribunal (in accordance with Rule VII, Paragraph 2(j)). - The Fund may request in its answer that the name of any other individual not be made public by the Tribunal (in accordance with Rule VIII, Paragraph 6). - An intervenor may request anonymity in his application for intervention. - Procedure and consideration: - Parties shall be given an opportunity to present their views to the Tribunal in response to a request for anonymity (in accordance with Rule VIII, Paragraph 5, and Rule IX, Paragraph 6). - The Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual. ### Annex A — Form of Application (selected fields and procedural requirements) - Applicant identity and status: - Full name of Applicant. - If claim based on employment rights of another person: (a) name and official status of person whose rights are relied upon; (b) relation of Applicant to that person. - Address for purposes of the proceedings; telephone number; fax number. - Official status and employment history: - Beginning and ending dates of each period of employment with the Fund. - Employment status at time of decision contested (whether in active service or in retirement). - Type of appointment. - Decision and administrative review: - Decision being challenged, date of the decision, and the authority responsible for the decision. - Channels of administrative review pursued and the results. - Pleadings and relief sought: - Reasons why Applicant challenges the decision and its legality. - Statement of supporting facts. - The relief or remedy being sought, including: - (i) the amount of compensation, if any, claimed by Applicant or the specific performance of any obligation requested, or both; - (ii) in cases where measures other than payment of money are sought, any exceptional circumstances that would warrant fixing an amount greater than three hundred percent (300%) of salary in accordance with Article XIV, Section 2 of the Statute; - (iii) costs as the Tribunal may award pursuant to Article XIV, Section 4 of the Statute. - Requests and attachments: - Any request for production of documents (see Article X of the Statute and Rule XVII). - Any request for oral proceedings (see Article XII of the Statute and Rule XIII). - Any request for anonymity (see Rule XXII). - Annexes to be attached pursuant to Rule VII, para. 3: - The Applicant shall include as attachments all documents cited in the application in an original or in an unaltered copy and in a complete text unless part is obviously irrelevant. - If a document is not in English, the Applicant shall attach a certified English translation. - The Applicant shall also attach a copy of any report and recommendation of the Grievance Committee in the matter. - Any additional information Applicant wishes to present to the Tribunal. ### Annex B — Form of Appointment of Representative (and Counsel) - Appointment language and scope: - The Applicant may designate a named representative [and counsel] with specified address to file/maintain an application with the IMF Administrative Tribunal. - The representative [and counsel] is authorized to sign pleadings, appear before the Tribunal, and take all necessary action in connection with the case on the Applicant’s behalf. - The designation takes effect immediately and remains in effect until revoked by the Applicant and the Tribunal has been informed in writing. - Signature and date required. - Note on caption: Delete bracketed words if representative will not also act as counsel. --- _Source: https://www.imf.org/-/media/files/imfat/imfat-4.pdf_