## j2002-2 — Administrative Tribunal Proceedings: Ms. “Y” v. IMF (Decision March 5, 2002)

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### Case overview and procedural posture
- The Administrative Tribunal of the International Monetary Fund met on March 4 and 5, 2002, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought by Ms. “Y”, a retiree of the Fund.
- This was Applicant’s second application seeking review of the May 8, 1998 decision of the Fund’s former Director of Administration upholding conclusions of an ad hoc discrimination review team.
- Prior proceedings:
  - IMFAT Judgment No. 1998-1 (December 18, 1998) summarily dismissed an earlier challenge for failure to exhaust Grievance Committee remedies under Article V of the Tribunal’s Statute.
  - Applicant then filed a Grievance; the Grievance Committee considered and denied the claim; Applicant filed a new Application with the Administrative Tribunal on July 6, 2001.
- Applicant requested de novo examination of allegations of discrimination on the bases of gender, age and career stream; remedies sought included reinstatement, retroactive promotion and back pay.
- Respondent contended the Discrimination Review Exercise (DRE) was a lawful discretionary exercise applied without procedural irregularity and urged denial of Applicant’s Application.

### Procedural timeline and filings
- Key dates and filings:
  - July 6, 2001: Application filed with the Administrative Tribunal.
  - July 25, 2001: Application transmitted to Respondent.
  - July 30, 2001: Registrar issued summary pursuant to Rule XIV, para. 4.
  - September 10, 2001: Respondent filed Answer.
  - October 15, 2001: Applicant submitted Reply.
  - November 16, 2001: Respondent filed Rejoinder.
  - January 23, 2002: Motion by Applicant to file an additional pleading received; President denied the Motion on February 6, 2002.
- Requests for production and oral proceedings:
  - Applicant made nine requests for production; most satisfied voluntarily; two denied as “clearly irrelevant” (President’s determination under Rule XVII on February 12, 2002): (1) Separation Benefits Fund Reports for 1995 to the present; (2) official notices sent to staff whose positions were abolished in 1994, 1995 and 1996.
  - Applicant requested oral proceedings; Tribunal denied oral proceedings on February 12, 2002 because Rule XIII, para. 1 condition that they be “necessary for the disposition of the case” was not met.
  - Tribunal weighed the record generated by the Grievance Committee, including a transcript of the Grievance Committee hearings.

### Factual background: Ms. “Y”’s career and separation
- Employment and grades:
  - Employed as an editorial clerk on July 1, 1971.
  - Promoted to a professional position as an editorial officer in 1983.
  - Promoted to grade A11 in 1987; held A11 in 1995 when the assistant editor position was abolished.
  - Over her career Ms. “Y” moved seven levels, from a starting grade equivalent to the current A4 to A11 (Respondent’s note).
- Abolition and separation arrangements:
  - Following abolition, efforts to find an alternative position were made over a six-month period (GAO No. 16, Section 13.01).
  - Assigned to a Temporary Assignment Position (TAP) for an initial period of 10 months, later extended for an additional 4-month period through the end of February 1997.
  - Applicant remained a staff member for 21 months after the effective date of abolition, in addition to the 120-day notice period and the 22.5 months of separation leave provided under GAO No. 16.
  - Applicant was “bridged” to an early retirement pension and lifetime access to the Fund’s health insurance.
  - Retirement became effective March 31, 1999.

### The Discrimination Review Exercise (DRE): scope, purpose, and procedures
- Design and purpose:
  - DRE was a special, one-time review of cases filed with the Director of Administration between August 28 and September 30, 1996.
  - Initiated to investigate and remedy, through an alternative dispute resolution mechanism, instances of past discrimination adversely affecting Fund staff careers.
  - DRE resulted from the report Discrimination in the Fund (December 1995) recommending a “much simpler ad hoc forum” as an alternative to the Grievance Committee and Administrative Tribunal.
  - Memoranda from the Managing Director (February 9, 1996; July 26, 1996) and from the Director of Administration (August 28, 1996; January 13, 1997) emphasized addressing concerns of staff who felt discriminated against and outlined ad hoc review procedures.
- Procedural features preserved in the source:
  - Reviews carried out by external consultants assisted by a small number of Fund staff, working in pairs.
  - Reviewers would review career records, meet with employees and others familiar with circumstances, and may suggest prospective remedial actions including assignments, mobility, training, promotions, and salary adjustments.
  - The Memoranda clarified the ad hoc review was one-time and “is not intended to replace or replicate the Fund’s grievance procedures.”
  - Confidentiality, lack of formal written record, and non-adversarial format were rationales for procedure design to encourage frankness and participation; statutes of limitation were not applied to DRE claims.

### DRE conduct and findings in Ms. “Y”’s case
- Procedural conduct and witness interviews:
  - The ad hoc review team comprised an outside consultant and a senior Administration Department official.
  - The team interviewed 22 people in total in Ms. “Y”’s case.
  - Average per case was about seven to eight witnesses; Ms. “Y”’s case involved 22 interviews (senior staff, directors, SPMs, edited staff, Administration personnel involved in abolition and job grading, supervisors in editorial stream of other departments).
  - Applicant alleged the team failed to interview approximately two-thirds of witnesses she suggested and that some interviewees were not knowledgeable or were biased; the team sometimes sampled witnesses from different groups rather than interviewing all suggested persons.
- Principal factual conclusions of the DRE team (as summarized by Respondent and the confidential Report):
  - Job grading: no basis that grading was adversely affected by discrimination; A11 was appropriate given editorial stream norms and nature of editorial work; clear demarcation between A11 (editing internal documents) and A12/A13 (creation of original work and publications).
  - Abolition of position: abolition resulted from budgetary developments and departmental priorities and reflected a “functional and rational prioritization as between editorial and economic functions” made independent of the identity of incumbents; departments sought small reductions in staffing and prioritized economists given economics workload.
  - Other factors: lack of day-to-day supervisor, absence of formal position description, denial of 1991 job audit, and allegations of sexual harassment or retaliation were examined and found not to have adversely affected grading or led to abolition.
  - Age-related claim: records of other separations showed those separating due to abolition tended to be older because the Fund approached persons eligible for early retirement to take advantage of separation incentives; team viewed this policy as “not a reflection of age discrimination” but a “humanitarian and sensible approach.”
- Remedies and focus:
  - DRE emphasized “forward-looking remedies”; in Ms. “Y”’s case the remedy sought under DRE was promotion rather than reinstatement, which affected emphasis in the investigation and feedback.

### Parties’ principal contentions before the Tribunal
- Applicant alleged:
  - Career and abolition of position were affected by discrimination based on gender, age and career stream.
  - Respondent failed to remedy discrimination via established procedures.
  - DRE was not thorough and contained seven major errors (witness omissions, biased interviewees, procedural lapses in job classification review, erroneous assumptions about retiree entitlement, mismanagement finding without relief, erroneous explanations for abolition, failure to investigate all issues).
  - DRE was biased due to initial Director of Administration decision excluding Applicant.
  - Applicant sought de novo Tribunal review and requested remedies including a finding of discrimination, reinstatement, retroactive promotion to grade A13 with back pay and pension adjustment, compensatory damages, and attorneys’ fees.
- Respondent argued:
  - DRE was a valid discretionary alternative dispute resolution mechanism.
  - Director of Administration’s decision properly followed the DRE team’s findings of no basis for discrimination.
  - DRE fully and fairly investigated claims; specific conclusions included that Applicant’s grade was consistent with the job and that any apparent higher grade reflected “personal incumbency,” denial of a 1991 job audit was consistent with policy, abolition was based on departmental work needs, and no evidence supported age, gender discrimination, sexual harassment or retaliation claims.
  - Alleged procedural defects did not materially affect outcome and the DRE did not revive time-barred grievances.

### Tribunal’s legal analysis: jurisdiction, scope, and standards of review
- Jurisdictional and procedural limits:
  - Tribunal can adjudicate challenges to the legality of an “administrative act”; Article V requires exhaustion of available channels of administrative review before Tribunal review.
  - Tribunal found Applicant had not initially invoked formal channels under GAO No. 31 to contest abolition or other allegedly discriminatory decisions; mandatory time periods had expired for those steps.
  - Judgment No. 1998-1 rejected Applicant’s claim that DRE satisfied Article V exhaustion because management repeatedly emphasized DRE “did not confer new rights and did not replace the grievance procedure.”
  - The Tribunal reserved the possibility of reconsidering admissibility if the Grievance Committee declined jurisdiction; the Grievance Committee accepted jurisdiction and reviewed the Grievance.
- Standards applied to discretionary decisions:
  - Deference to Fund policy-making is required; discretionary decisions are overturned only if arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.
  - De Merode standard for organizational changes applied: changes must be based on proper consideration of relevant facts, reasonably related to objectives, made in good faith, not prompted by improper motives, not unjustifiably discriminatory, and made to avoid excessive harm.
  - Tribunal posed three analytical questions for Ms. “Y”’s case:
    1. Were procedures applied consistent with DRE procedures and with those applied in other cases?
    2. Were the DRE team’s conclusions (and Director’s ratification) reasonably supported by evidence?
    3. Was the investigation affected by bias?
- Record support for lawfulness of DRE as exercised:
  - Approximately 70 staff members availed themselves of DRE procedures, with half of these individuals receiving some form of relief.
  - DRE derived from reasoned administrative consideration following Discrimination in the Fund (December 1995).
  - Confidentiality and lack of formal record were rationally related to DRE’s purpose of encouraging candid participation.
  - Fund partnered with outside consultants specializing in alternative dispute resolution.

### Tribunal findings on procedural observance, evidence, and bias
- Procedural observance and comparability:
  - Tribunal found procedures applied to Ms. “Y”’s case were consistent with the August 28, 1996 and January 13, 1997 Memoranda and with practices in other DRE cases.
  - Testimony confirmed use of the same format across cases; outside consultant stated: “[i]n this case, we followed the same format that we did in each of them....” (Tr. p. 313.)
- Evidentiary support:
  - Tribunal concluded the DRE team’s conclusions and Director of Administration’s ratification were reasonably supported by evidence adduced in the investigation (interviews, career records, supervisory input, grading standards analysis).
  - Specific evidentiary bases included the team’s examination of duties, grading standards, interviews with supervisors and career-stream staff, and review of other abolitions.
- Bias and independence:
  - Applicant’s contention of bias stemming from an initial Director of Administration decision excluding her was considered; senior Administration Department official testified he did not believe the initial judgment influenced the consultant or himself and was uncertain whether the consultant knew of the initial decision.
  - Tribunal concluded the DRE review and the Director of Administration’s ratification were not affected by personal animus or bias sufficient to rescind the discretionary decision.

### Tribunal conclusions and decision
- The Administrative Tribunal concluded:
  - The procedures applied to Ms. “Y”’s case were consistent with applicable DRE Memoranda and with procedures applied by DRE teams in other cases.
  - The conclusions of the DRE team and their ratification by the Director of Administration were reasonably supported by the evidence adduced.
  - The DRE proceedings in respect of Applicant’s claims were regular, appropriate and unexceptionable.
  - There was no ground for questioning the conclusion that Applicant’s career disposition was unaffected by discrimination.
- Decision outcome:
  - The Application of Ms. “Y” is denied.
  - Signatories: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge.
  - Registrar: Celia Goldman.
  - Washington, D.C., March 5 , 2002.

*Administrative Tribunal of the International Monetary Fund, Decision and related judgment excerpts (hearing March 4–5, 2002; Decision March 5 , 2002).*

### Introduction

### Introduction

### Case overview and procedural posture
- The Administrative Tribunal of the International Monetary Fund met on March 4 and 5, 2002, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought by Ms. “Y”, a retiree of the Fund.
- This is Ms. “Y”’s second application to the Administrative Tribunal seeking review of the May 8, 1998 decision of the Fund’s former Director of Administration upholding the conclusions of an ad hoc discrimination review team.
- In IMFAT Judgment No. 1998-1 (December 18, 1998), the Tribunal summarily dismissed an earlier challenge to the same May 8, 1998 decision because Applicant had not met the requirement of Article V of the Tribunal’s Statute to exhaust all available channels of administrative review; specifically, she had not sought review by the Fund’s Grievance Committee.
- The Grievance Committee subsequently considered and denied Applicant’s claim, and Applicant filed a new Application with the Administrative Tribunal.
- Applicant requests the Tribunal to:
  - examine de novo her allegations of discrimination on the bases of gender, age and career stream;
  - enter a finding that her career was unlawfully affected by discrimination; and
  - order remedies including reinstatement, retroactive promotion and back pay.
- Respondent contends the Discrimination Review Exercise (DRE) was a lawful exercise of the Fund’s discretion, applied without procedural irregularity, and that the review team’s and the Director of Administration’s conclusions were not arbitrary, capricious or discriminatory; Respondent urges denial of Applicant’s Application.

### Procedural timeline and filings
- July 6, 2001: Ms. “Y” filed an Application with the Administrative Tribunal.
- Registrar advised Applicant under Rule VII, para. 6 that the Application did not fulfill the requirements of paras. 3 and 4 of Rule VII; Applicant was given fifteen days to correct deficiencies. The Application, having been brought into compliance within the indicated period, is considered filed on the original date.
- July 25, 2001: Application transmitted to Respondent.
- July 30, 2001: Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4.
- September 10, 2001: Respondent filed its Answer.
- October 15, 2001: Applicant submitted her Reply.
- November 16, 2001: Respondent filed its Rejoinder.
- January 23, 2002: Office of the Registrar received a Motion by Applicant to file an additional pleading; transmitted to the President under Rule XI.
- February 6, 2002: President denied Applicant’s Motion to file an additional pleading, finding no exceptional circumstances warranting additional pleadings.

### Requests for production of documents and oral proceedings
- Applicant included nine requests for production of documents; the majority were satisfied voluntarily by Respondent.
- Two outstanding requests sought:
  1. copies of the Separation Benefits Fund Reports for 1995 to the present; and
  2. copies of official notices sent to Fund staff whose positions were abolished in 1994, 1995 and 1996.
- Respondent opposed disclosure on grounds of relevancy and privacy.
- February 12, 2002: President, pursuant to Rule XVII, denied Applicant’s requests for production on the basis that the documents sought were “clearly irrelevant to the case.”
- Applicant requested oral proceedings “... to present her claim for relief and to finally develop a complete factual record of her claims of discrimination.” Respondent opposed, asserting the full record was before the Tribunal.
- February 12, 2002: Tribunal denied Applicant’s request for oral proceedings because the condition in Rule XIII, para. 1 that oral proceedings be held only if “necessary for the disposition of the case” was not met.
- The Tribunal had available a transcript of oral hearings by the Fund’s Grievance Committee at which Ms. “Y”, the members of the DRE review team (an outside consultant and a senior official of the Fund’s Administration Department), and an additional member of the Administration Department were heard.
- The Tribunal is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.

### Factual background: Ms. “Y”’s career and separation
- Ms. “Y” was employed as an editorial clerk on July 1, 1971.
- Promoted to a professional position as an editorial officer in 1983.
- In 1987, after appealing her job grade, she was promoted to grade A11, which she still held in 1995 when the position—assistant editor—was abolished.
- Respondent notes that over her career Ms. “Y” moved seven levels, from a starting grade equivalent to the current A4 to A11.
- Following abolition of her post, Applicant was advised of options under the Fund’s policy governing abolition of posts; efforts were made over a six-month period to find an alternative position (GAO No. 16, Section 13.01).
- On an exceptional basis, arrangements were made for Applicant to be assigned to a Temporary Assignment Position (TAP) for an initial period of 10 months, later extended for an additional 4-month period through the end of February 1997.
- Applicant’s selection for the TAP meant she remained a staff member for 21 months after the effective date of the abolition of her post, in addition to the 120-day notice period and the 22.5 months of separation leave provided under GAO No. 16.
- As a result, Applicant was “bridged” to an early retirement pension and lifetime access to the Fund’s health insurance.
- Applicant’s retirement from the Fund became effective March 31, 1999.

### The Discrimination Review Exercise (DRE): scope, purpose, and procedures
- The DRE was a special, one-time review of cases of alleged discrimination filed with the Director of Administration between August 28 and September 30, 1996.
- The DRE was initiated 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 resulted from the report Discrimination in the Fund (December 1995) prepared by the Chairman of the Fund’s Advisory Group on Discrimination, which recommended a “much simpler ad hoc forum” for settling discrimination complaints as an alternative to more elaborate legal procedures like the Grievance Committee and the Administrative Tribunal.
- Memoranda from the Managing Director (February 9, 1996; July 26, 1996) emphasized addressing concerns of staff who felt discriminated against and stated that questions of past discrimination must be addressed.
- August 28, 1996 Memorandum from the Director of Administration, “Review of Individual Discrimination Cases,” set forth avenues for identification of cases for review, including self-identification, and outlined that:
  - the Administration Department would draw on input from subordinates, peers, and supervisors;
  - the career record would be reviewed; and
  - reviewers may meet with the individual employees and, where warranted, suggest prospective and constructive remedial actions including assignments, mobility, training, promotions, and salary adjustments.
- The Memorandum clarified the ad hoc review is a one-time action and “is not intended to replace or replicate the Fund’s grievance procedures.”
- January 13, 1997 Memorandum from the Director of Administration, “Procedures for Review of Individual Discrimination Cases,” stated reviews would be carried out by external consultants assisted by a small number of Fund staff, working in pairs, who would:
  - review backgrounds of individual discrimination cases;
  - meet with individuals concerned and others familiar with their circumstances;
  - make recommendations; and
  - where remedial action is warranted, generally suggest prospective actions within existing personnel policies, including reassignments, training and other development initiatives, promotions, and salary adjustments.
- The Memorandum emphasized discretion and sensitivity in conducting reviews, feedback sessions with concerned employees, and using lessons learned to strengthen Fund policies and practices to prevent future discrimination.

*Administrative Tribunal of the International Monetary Fund, Introduction (hearing March 4–5, 2002).*

### 20.      In response to the Director of Administration’s August 28, 1996 Memorandum to

### Judgment summary: Administrative Tribunal proceedings concerning Applicant’s DRE claim

### Case background and procedural history
- Applicant (Ms. “Y”) on September 30, 1996 requested review under the DRE alleging her Fund career had been adversely affected by discrimination based on profession, gender and age, which she contended had affected the grading of her position and culminated in the abolition of her post.
- Director of Administration initially determined Applicant was not eligible for DRE because she would shortly separate on early retirement; Applicant filed a Grievance with the Grievance Committee.
- On June 27, 1997 the Director of Administration reversed the initial determination and instructed that the Fund should carry out a DRE review of Applicant’s discrimination claim.
- An ad hoc review team (an outside consultant and a senior official of the Administration Department) conducted the DRE, met with Applicant on several occasions, and concluded there was no evidence to support allegations that grading or abolition of the post was influenced by discrimination; the team found no basis to recommend re-grading (remedy sought by Applicant).
- Applicant met the team on December 19, 1997 and was informed of its conclusions; through counsel, by letter dated January 27, 1998, Applicant requested administrative review by the Director of Administration.
- Director of Administration replied February 10, 1998 explaining the basis for finding no relief warranted and offered another meeting with the review team; Applicant did not meet but counsel repeated the request for administrative review on March 24, 1998.
- On May 8, 1998 the Director of Administration wrote that she fully concurred with the review team’s recommendation; the May 8, 1998 decision is the decision contested in the Administrative Tribunal.
- Applicant filed her Application in the Administrative Tribunal on July 6, 2001.

### DRE conduct and findings
- The DRE ad hoc review team:
  - interviewed Applicant on several occasions;
  - concluded there was no evidence that grading of Applicant’s position or abolition of her post was influenced by discriminatory factors;
  - determined no basis existed to recommend a re-grading of Applicant’s position.
- Applicant’s criticisms of the DRE process (summarized from her submissions):
  - The DRE team failed to interview approximately two-thirds of the witnesses suggested by Applicant.
  - The DRE team disregarded most of Applicant’s suggested witnesses without basis to determine relevance.
  - The team interviewed individuals “not knowledgeable of her work and who may have been biased against her.”
  - The team did not follow appropriate procedures for reviewing job classification.
  - The team erroneously assumed that as a retiree Applicant would not be entitled to relief under the DRE.
  - The team found Applicant’s career had been “mismanaged by the Fund,” but determined she was not entitled to relief.
  - The team’s explanations for the abolition of Applicant’s position were “plainly erroneous.”
  - The DRE team failed to investigate all issues Applicant raised.
  - The DRE team was biased because the Director of Administration had initially decided Applicant’s case was not appropriate for DRE.
- Respondent’s summary of DRE conclusions:
  - After examining duties, grading standards, interviews with supervisors and career-stream staff, the DRE concluded Applicant’s grade was consistent with the job and that Applicant occupied a grade one grade higher than others in the same job in other area departments because of “personal incumbency.”
  - Denial of a job audit in 1991 was consistent with Fund policies and procedures.
  - Lack of day-to-day supervisor and absence of a formal position description were not the result of discrimination and did not negatively affect assessment of Applicant’s work.
  - Abolition of Applicant’s position was based on departmental work needs and was unrelated to the identity of the incumbent.
  - Review of other job abolitions showed no evidence of age or gender discrimination.
  - No support was found for claims linking abolition to sexual harassment or retaliation.
  - The DRE review was conducted in accordance with DRE procedures and in the same manner as other cases.

### Channels of administrative review and Tribunal rulings
- The Administrative Tribunal in Judgment No. 1998-1 summarily dismissed Applicant’s earlier Application for failure to exhaust the Grievance Committee under Article V of the Tribunal’s Statute, finding the DRE ad hoc review “did not go through the steps outlined in Sections 6.02-6.05 of the GAO,” and “could not have done so, because the mandatory time periods for each of these steps had expired when the review was undertaken.” (Ms. “Y”, para. 40.)
- The Tribunal concluded the contested decision of the Director of Administration should be considered a decision “taken directly by the Director of Administration” within the meaning of Section 6.06 of GAO No. 31 and noted lack of clarity in management communications about the relationship between ad hoc discrimination review and Grievance Committee recourse, which “... understandably may have led Applicant to conclude that exhaustion of Grievance Committee channels was not required in her case.” (Ms. “Y”, para. 42.)
- The Tribunal granted Respondent’s Motion for Summary Dismissal but held:
  - “Given the singular circumstances of this case, in the event that the Grievance Committee, if seized, should decide that it does not have jurisdiction over Applicant’s claim, the Administrative Tribunal will reconsider the admissibility of that claim on the basis of the Application now before it.” (Ms. “Y”, para. 43.)
- Applicant subsequently filed a Grievance in the month preceding issuance of Judgment No. 1998-1 challenging the May 8, 1998 decision of the Director of Administration; following mediation, the Grievance Committee conducted hearings.
- The Grievance Committee issued its Recommendation and Report on April 10, 2001 and concluded Applicant failed to show that the findings and conclusions of the discrimination review team (and their affirmation by the Director of Administration) were arbitrary, capricious or discriminatory, or procedurally defective in a manner that substantially affected the outcome; the Committee recommended denial of the Grievance. Fund management accepted the recommendation on April 18, 2001.
- The Tribunal noted that because the Grievance Committee accepted jurisdiction over the Grievance, its earlier reservation about revisiting admissibility was not exercised; the Application before the Tribunal is that filed on July 6, 2001.

### Parties’ principal contentions
- Applicant’s principal contentions (summarized):
  1. Career and abolition of position were affected by discrimination based on gender, age and career stream (non-economist).
  2. Respondent failed to remedy discrimination via established procedure.
  3. Applicant did not receive the review contemplated by the Managing Director; the DRE was not thorough.
  4. Seven major errors in DRE conduct (see DRE conduct and findings bullets).
  5. DRE failed to investigate all issues raised.
  6. DRE was biased due to initial Director of Administration decision excluding Applicant.
  7. Applicant’s career parallels larger patterns of discrimination revealed by Respondent’s own studies; Applicant should be deemed to have established a prima facie case and shift burden to Respondent.
  8. DRE examination has not been meaningfully reviewed.
  9. Applicant seeks de novo review of the factual merits of discrimination claims in the Administrative Tribunal.
  10. Relief sought:
     - a. a finding that Applicant’s career was adversely affected by discrimination;
     - b. reinstatement;
     - c. retroactive promotion to grade A13, with corresponding back pay and pension adjustment;
     - d. compensatory damages; and
     - e. attorneys’ fees.
- Respondent’s principal contentions (summarized):
  1. The DRE was a valid exercise of discretionary authority to provide alternative dispute resolution.
  2. Director of Administration’s decision properly followed the DRE team’s findings of no basis for discrimination.
  3. DRE fully and fairly investigated claims; conclusions substantiated by investigation, including:
     - a. Applicant’s grade consistent with job; Applicant occupied a grade one grade higher than others in same job elsewhere due to “personal incumbency”;
     - b. 1991 denial of job audit consistent with policy;
     - c. lack of supervisor/position description not discriminatory nor detrimental;
     - d. abolition based on departmental work needs unrelated to incumbent;
     - e. no evidence of age or gender discrimination in other abolitions;
     - f. no support for sexual harassment or retaliation claims.
  4. The DRE did not find Applicant’s career was “mismanaged.”
  5. Review accorded to DRE procedures and consistent with reviews of other staff complaints.
  6. Review was not biased by initial decision not to include Applicant.
  7. Alleged procedural defects did not materially affect outcome.
  8. Applicant had full opportunity to present evidence but failed to establish claims.
  9. De novo Tribunal review of merits is inappropriate because Applicant failed to raise claims timely under GAO No. 31; DRE did not confer new rights that revive time-barred grievances. The only decision properly before the Tribunal is the decision arising out of the DRE.

### Tribunal’s analysis of scope of review
- The Tribunal emphasized jurisdictional limits: it can adjudicate challenges to the legality of an “administrative act” and Article V requires exhaustion of available channels of administrative review before Tribunal review.
- The Tribunal found Applicant did not invoke formal channels under GAO No. 31 to contest abolition of her position or other allegedly discriminatory decisions; therefore exhaustion had not initially occurred.
- In Judgment No. 1998-1 the Tribunal rejected Applicant’s view that the DRE opened an alternative channel satisfying Article V exhaustion requirements; the Tribunal noted management had repeatedly emphasized the ad hoc review did not confer new rights and did not replace the grievance procedure.
- The Grievance Committee subsequently accepted and reviewed the Grievance, applying its standard of review: uphold discretionary decisions only if arbitrary, capricious, discriminatory, or procedurally defective in a manner that substantially affected the outcome. The Committee found no such defects and recommended denial of the Grievance; management accepted that recommendation on April 18, 2001.

*Source: Administrative Tribunal and related Fund administrative records as presented in the cited judgment excerpts.*

### 39.      At the same time, in holding that review of Ms. “Y”’s underlying discrimination

### At the same time, in holding that review of Ms. “Y”’s underlying discrimination

### Timeliness, exhaustion of remedies, and limits on Tribunal review
- The Administrative Tribunal held that review of Ms. “Y”’s underlying discrimination claims had been foreclosed because the mandatory time periods for invoking prior steps prescribed by GAO No. 31 had expired; the only decision subject to review by the Grievance Committee (and thereafter by the Administrative Tribunal) was the May 8, 1998 decision of the Director of Administration. (Ms. “Y”, para. 40; Judgment No. 1998-1.)
- The Tribunal emphasized the value of timely administrative review to the reliability of later adjudication:
  - Timely pursuit provides early opportunity for the institution to rectify possible errors when memories are fresh and documents are likely in hand.
  - Condoning long and inexcusable delays would significantly undermine that purpose. (Quoted: Alcartado, AsDBAT Decision No. 41, para. 12.)
- Time limits are “of a mandatory nature and are enforced by courts in the public interest.” (Quoted from Mariam Yousufzi v. IBRD, WBAT Decision No. 151 (1996), paras. 25-26; cited Estate of Mr. “D”, para. 105.)
- The Tribunal reserved the possibility of reconsidering admissibility if the Grievance Committee determined not to exercise jurisdiction. (Ms. “Y”, paras. 42-43.)
- While the DRE was created as an alternative dispute resolution mechanism to remedy instances of past discrimination stretching beyond statutory bars, the Administrative Tribunal remains controlled by its Statute.

### Scope of review: regulatory decision (the DRE) versus individual decision
- Respondent characterized the DRE as a “regulatory decision” under Article II of the Statute and contended that the DRE was a proper exercise of the Fund’s discretionary authority.
- Applicant challenged procedural attributes of the DRE, notably:
  - The absence of a written record of proceedings, contending she was not afforded a meaningful review of the DRE team’s investigation.
  - The Application challenged the Director of Administration’s May 8, 1998 decision in part because it allegedly denied her “... request for ... a full and fair accounting of the administrative procedure instituted by the Managing Director of the Fund in his Memorandum of July 26, 1996 to address past discrimination in the Fund,” and contended that “... the discrimination review process’ examination of the merits of Applicant’s discrimination claims has never been subjected to any type of meaningful review.”
- Exchange of correspondence in early 1998:
  - Ms. “Y”’s counsel (January 1998) asserted that “a written record should have been created” and suggested that “a complete de novo review of Ms. [‘Y’]’s claim is in order.”
  - The Director of Administration responded that procedures were designed to be informal and expeditious, and “did not provide the same rights or entitlements available to staff under the Fund’s grievance procedures which are subject to a strict time bar,” and described actions undertaken by the review team. (May 8, 1998 decision detailed the findings of the review team and concurred in its conclusions.)
- Respondent’s rationale for DRE design (direct quotation preserved):
  - DRE was “... a good faith attempt to encourage the voluntary participation of staff members who had concerns but who might not be in a position to advance those concerns as legal claims either because they were time-barred or because relevant information was no longer available.
Accordingly, statutes of limitation were not applicable to the claims that would be considered, and staff members were not required to meet legal evidentiary standards or to bear the burden of proof. Staff members were not represented by counsel because this was not an adversarial procedure, nor was the staff member being accused of misconduct or performance deficiencies such as would warrant the assistance of legal counsel to protect the staff member’s employment rights. There was no formal record-keeping or transcription of testimony because both the participants and those interviewed were given assurances that their recollections and views would remain strictly confidential. This was considered essential in order to obtain the cooperation of the interviewees and to encourage frankness and candor on their part. While these elements may be integral to an adversarial, legal proceeding, they are neither mandatory nor appropriate in the context of a human resources exercise such as the DRE, which by its very nature could not have utilized a legalistic process and still achieved the intended results.”
- Article III of the Tribunal’s Statute requires application of Fund internal law and “generally recognized principles of international administrative law concerning judicial review of administrative acts,” and the Commentary indicates a narrow scope of review with deference to Fund policy-making.

### Standard for reviewing the Fund’s discretionary decisions and the DRE’s lawfulness
- De Merode, WBAT Decision No. 1 (1981) standard for organizational changes (quoted):
  - Changes “must be based on a proper consideration of relevant facts. They must be reasonably related to the objective which they are intended to achieve. They must be made in good faith and must not be prompted by improper motives. They must not discriminate in an unjustifiable manner between individuals or groups within the staff. Amendments must be made in a reasonable manner seeking to avoid excessive and unnecessary harm to the staff. In this respect, the care with which a reform has been studied and the conditions attached to a change are to be taken into account by the Tribunal.” (de Merode, para. 47.)
- The Tribunal concluded that the Respondent’s decision to undertake the DRE did not represent an abuse of discretionary authority.
- Record support for DRE as a reasonable exercise of discretion:
  - Approximately 70 staff members availed themselves of these procedures, with half of these individuals receiving some form of relief.
  - DRE resulted from reasoned consideration by the Fund’s administration, based on recommendations in Discrimination in the Fund (December 1995).
  - DRE procedures (confidentiality, lack of a written record) were rationally related to the purpose of encouraging cooperation and candor.
  - The Fund partnered with outside consultants specializing in alternative dispute resolution in developing and conducting the DRE.

### Individual decision review: standards and key questions
- Deference to the Fund’s decision to institute DRE does not preclude review of the DRE’s conduct in individual cases for abuse of discretion.
- Review standard for individual managerial discretion (Commentary): discretionary decisions cannot be overturned unless 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.)
- Burden of proof lies with the applicant: “In all cases of discretion, unless otherwise proven, it is assumed that the administrative authority will exercise its discretion in an objective and non-discriminatory manner.” (Iona Sebastian (No. 2) v. IBRD, WBAT Decision No. 57 (1988), para. 22.)
- ILOAT summary for review of administrative discretion: Tribunal will set a decision aside only if it shows a formal or procedural flaw, or a mistake of fact or of law, or if some essential fact was overlooked, or if it was ultra vires, or if there was misuse of authority, or if an obviously wrong conclusion was drawn from the evidence. (In re Pary (No. 4), ILOAT Judgment No. 1500 (1996), para. 5.)
- The Tribunal identified three specific analytical questions to apply in Ms. “Y”’s case:
  1. Were the procedures applied to Ms. “Y”’s case consistent with the procedures set forth for the DRE and with those applied by the DRE teams in other cases?
  2. Were the conclusions of the DRE team in Ms. “Y”’s case (and their ratification by the Director of Administration) reasonably supported by evidence?
  3. Was the investigation of Ms. “Y”’s claims affected by bias?

### Procedural flexibility and observance of DRE rules
- The Tribunal noted that observance of an organization’s procedural rules is important when reviewing discretionary decisions. (Mr. M. D’Aoust, IMFAT Judgment No. 1996-1 (April 2, 1996), para. 23.)
- DRE procedures were set forth in Memoranda to Staff of August 28, 1996 and January 13, 1997; their hallmark was flexibility: “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 to Staff from Director of Administration, “Review of Individual Discrimination Cases,” August 28, 1996.)
- The procedures contemplated a considerable degree of latitude for the review teams in undertaking their investigation.

*Source: Administrative Tribunal judgments and related Tribunal commentary on the Discrimination Review Exercise (DRE) and the Administrative Tribunal’s review of individualized claims under the Fund’s Statute.*

### 56.      Nonetheless, certain parameters were established. Each review team would be

### j2002-2 — Review of Individual Discrimination Case of Ms. “Y”

### DRE review procedures and implementation
- Each review team comprised an outside consultant and a Fund official working as a pair.
- Initial meeting with the staff member to obtain background information and to identify subordinates, peers and supervisors who might provide information.
- Career record and performance reports were reviewed.
- Review to be taken in “as discrete and sensitive a manner as possible.”
- Where it was concluded that past discrimination had adversely affected the staff member’s career, “forward-looking remedies” would be identified.
- Feedback sessions were undertaken with the staff member to inform him of the conclusions of the review.
- Relevant memoranda: “Review of Individual Discrimination Cases,” August 28, 1996; “Procedures for Review of Individual Discrimination Cases,” January 13, 1997.
- Testimony and practice:
  - Procedures in the Memoranda were followed in Ms. “Y”’s and other cases (senior Administration Department official).
  - Outside consultant confirmed: “[i]n this case, we followed the same format that we did in each of them....” (Tr. p. 313.)
  - The review team’s confidential case Report included names of persons interviewed and summaries; initial background meeting and later feedback sessions were held with Applicant.

### Scope and conduct of fact-finding
- Witness selection and interviews:
  - The review team spoke with 22 people in total in Ms. “Y”’s case.
  - On average, about seven to eight witnesses were interviewed per case; Ms. “Y”’s case involved 22 interviews.
  - The team interviewed senior staff, directors, SPMs (senior personnel managers), about ten staff members whose work Ms. [“Y”] had edited or who she had worked for, Administration Department personnel involved in the abolition decision and job grading, and supervisors in the editorial stream in the Secretary’s Department and the External Relations Department.
  - The team sometimes sampled witnesses from different groups (peers, subordinates, supervisors, expert testimony) rather than interviewing all suggested persons; availability constraints were noted.
- Allegations by Applicant about investigative omissions:
  - Applicant alleged the team failed to interview approximately two-thirds of the witnesses she had suggested, that witness selection lacked relevant evidentiary basis, and that some interviewees were not knowledgeable or were biased.
  - The Grievance Committee testimony and the confidential Report indicate the team sought information and drew conclusions about all of Ms. “Y”’s claims, though some allegations received relatively more attention than others.

### Principal findings and bases
- General evidentiary standard:
  - Conclusions of discretionary administrative acts must not be arbitrary or capricious and must be reasonably supported by evidence; tribunals will not substitute their judgment for that of competent organs.
  - A decision may be set aside if it “... rested on an error of fact or of law, or if some essential fact was overlooked ... or if clearly mistaken conclusions were drawn from the evidence.” (In re Durand-Smet (No. 4), ILOAT Judgment No. 2040 (2000), para. 5.)
- Job grading (A11 vs A13):
  - The DRE team examined whether Ms. “Y”’s position should have been graded at A13 rather than A11, canvassing supervisory and non‑supervisory staff, personnel familiar with job grading standards, and editorial stream comparators.
  - The team concluded there was no basis for the claim that grading had been adversely affected by discrimination.
  - Specific basis: At A11, Ms. “Y” was at the ceiling of the ladder for her career stream in area departments due to the nature of editorial work; she had not sought positions in other departments that might offer greater advancement.
  - The team found a “clear demarcation” between A11 and A12 in the editorial stream: A11 and below primarily involve editing internal documents drafted by others; A12 and above dominated by creation of original work, including for publication. (Tr. pp. 157-159, 162, 215-216, 229, 236, 241-242; Report, pp. 3-7.)
- Abolition of position:
  - The team interviewed senior staff involved in the abolition decision and concluded the abolition resulted from budgetary developments and departmental priorities, not discrimination.
  - Departments had been asked to make small reductions in overall staffing; the pressure of economics work in the two departments served by Ms. “Y” led to the decision that it would be preferable not to lose an economist.
  - Those involved emphasized Ms. “Y”’s work was valued and efforts were made to relocate her within the Fund. (Tr. pp. 208, 210-212, 275.)
  - Team determination: decision reflected “... a functional and rational prioritization as between editorial and economic functions. This prioritization of functions also appeared to the review team to have been made independent of the position incumbents.” (Report, p. 6.)
- Other claims examined and conclusions:
  - The team examined allegations concerning lack of a day-to-day supervisor; lack of a formal job description; department’s decision not to appeal a job audit denial; alleged sexual harassment or retaliation. The team concluded none of these factors had adversely affected grading or led to abolition. (Tr. pp. 154, 155-156, 160-161, 171-172, 203, 213-216, 226, 257, 324.)
  - Allegation of age discrimination related to abolition: team examined records of other separations and concluded staff separating due to abolition tended to be older because the Fund approached persons eligible for early retirement to take advantage of separation incentives; team viewed this policy as “not a reflection of age discrimination” but a “humanitarian and sensible approach.” (Tr. pp. 164, 260-261.)

### Bias and independence of review
- Applicant contended the DRE team was biased because the Director of Administration initially determined the case was not appropriate for DRE review given Applicant’s imminent separation.
- Senior Administration Department official’s testimony:
  - He did not believe the Director’s initial judgment or its reversal influenced the consultant or himself; he was uncertain whether the consultant was even aware of the initial decision.
  - He stated there was nothing different about how Ms. [“Y”]’s case was treated compared with the other 14, 15 cases he was involved with. (Tr. pp. 247-248.)
- The review team and confidential Report indicated relatively less emphasis on abolition of position than on job grading because the remedy sought under DRE was promotion rather than reinstatement. (Tr. pp. 232; Report at p. 4.)
- Director of Administration’s May 8, 1998 decision drew directly on the review team’s evidence and findings.
- Tribunal conclusion: the DRE review and the Director of Administration’s ratification were not affected by personal animus or bias sufficient to rescind the discretionary administrative decision.

### Tribunal conclusions and decision
- The Administrative Tribunal concluded:
  - The procedures applied to Ms. “Y”’s case were consistent with the applicable Memoranda and those applied by DRE teams in other cases.
  - The conclusions of the DRE team and their ratification by the Director of Administration were reasonably supported by the evidence adduced in the investigation.
  - The DRE proceedings in respect of Applicant’s claims were regular, appropriate and unexceptionable.
  - There is no ground for questioning the conclusion that the Applicant’s career disposition was unaffected by discrimination.
- Decision:
  - The Application of Ms. “Y” is denied.
  - Signatories: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge.
  - Registrar: Celia Goldman.
  - Washington, D.C., March 5 , 2002.

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_Source: https://www.imf.org/-/media/files/imfat/j2002-2.pdf_