## Administrative Tribunal Decision: Application of Ms. “W” (j2005-2)

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### Background and procedural history
- The Administrative Tribunal of the International Monetary Fund met July 28 and 29, 2005, to adjudge the case brought against the International Monetary Fund by Ms. “W”, a staff member of the Fund.
- Key filings and dates:
  - Applicant filed an Application with the Administrative Tribunal: November 19, 2003.
  - Registrar summary within the Fund issued: January 6, 2004.
  - Respondent filed its Answer: January 26, 2004.
  - Applicant submitted her Reply: March 1, 2004.
  - Fund’s Rejoinder filed: April 1, 2004.
  - The Administrative Tribunal rendered its decision denying the Application: November 17, 2005.
- Applicant’s central claim: gender discrimination adversely affected salary and grade level; sought pay increase and promotion from Grade A14 to A15.
- Director of Administration ratified the DRE team’s finding of no discrimination but approved:
  - a within‑grade salary increase, and
  - career development assistance to strengthen Applicant’s ability to compete for positions at the next grade level;
  - denied Applicant’s request for promotion.

### Discrimination Review Exercise (DRE) — scope, methodology, and participation
- DRE design and scope:
  - DRE was an exceptional, one-time inquiry for cases submitted between August 28 and September 30, 1996.
  - Approximately 70 cases were reviewed.
  - Five review teams, each with one outside consultant and one Fund staff member; review teams plus the Special Advisor on Diversity and the Director of ADM met to ensure consistency.
- Investigation procedures in individual reviews:
  - Initial interview with applicant; interviews with authorized contacts (supervisors, subordinates, peers); statistical analysis where required; feedback interview with applicant.
  - Approximately 600 contact interviews were conducted.
  - Outside consultants made final determinations regarding merit of claims and suggested remedial actions; the Director of Administration retained final decision-making authority.
- DRE limitations and remedial constraints:
  - Remedies were to be prospective and within existing personnel policies.
  - Factors constraining remedies 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.”
  - Memoranda and guidelines emphasized confidentiality and the ad hoc nature of the process.

### DRE findings, reported statistics, and remedial outcomes
- Aggregate DRE findings reported by the Consultants’ Report:
  - Of some 70 cases reviewed, indications of “unfair or uneven treatment” were identified in approximately half of the 67 cases for which recommendations were made.
  - Distribution of primary factors where unfair treatment was found:
    - 77 percent linked primarily to race/nationality.
    - 20 percent linked primarily to gender.
    - 3 percent linked primarily to age.
  - The Report used categories “Indications of Unfair or Uneven Treatment” versus “no such indications”; it did not use a category titled “discrimination.”
  - The Report stated: “The discrimination review exercise was not designed to prove the presence or absence of discrimination to a high legal standard.”
- Remedies and their frequency:
  - 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.”
    - The table in the Report indicates promotion was the primary remedy for 23 percent of women and for 27 percent of men.
  - Within‑grade salary adjustments:
    - In another 15 of the 35 cases with indications of unfair treatment, a within‑grade salary adjustment averaging 6.2 percent was the primary remedial action.
    - 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).
  - Additional support: training, reassignments, coaching, and mentoring were commonly provided; in three cases with identified unfair treatment, remedial action did not involve promotion or within‑grade adjustment but included career development support.
- Consultants’ articulation of statistical role:
  - Review teams relied primarily on qualitative evidence to determine appropriate grade level and used statistics mainly to determine salary adjustment magnitude.
  - The Consultants’ Report and the Fund concluded aggregate statistical analysis could not demonstrate discrimination conclusively in individual cases.

### Ms. “W”’s DRE review findings and recommended remedy
- Applicant’s career chronology:
  - Began at the Fund: February 1, 1982 as an Economist at grade G (equivalent to A12).
  - Promoted to Grade A13 in 1986.
  - Transferred to “Department 2” in 1989.
  - Moved to “Department 3” in 1992; promoted to Senior Economist at Grade A14 in 1995.
  - Transferred to “Department 4” in 2000.
  - Took post as a Fund Resident Representative in 2004 while remaining Grade A14.
- Applicant’s statistical assertions to the DRE:
  - Working Group regression measured a statistically significant adverse treatment of women economists equal to 3.4 percent of women’s salaries on average.
  - Substituting Applicant’s data into the regression indicated she should have earned $91,992 in 1993 had she been treated the same as the average performing male economist.
  - Ordered probit regressions indicated she should have been graded at A15 in 1993.
- DRE review team findings:
  - Found indications Applicant was treated differently early in her career (not given prime assignments in Department 1, “known at the time as not having a good record for promoting women”).
  - Identified “skill deficits” described as producing “mountains of data” without corresponding focus on the “big picture” (termed the “forest for the trees” problem), noted mainly in early APRs and said to have attenuated after transfer to Department 3.
  - Concluded the “skill deficits” rebutted the presumption of discrimination and therefore did not find discrimination in Applicant’s career overall.
- Remedy recommended and adopted:
  - Review team recommended a one‑time salary increase of 6.5 percent and career development measures (supervisory responsibilities, assignments to develop writing skills, encouragement to apply for A15 vacancies with ADM support).
  - Director of Administration approved a 6.5 percent salary adjustment within Grade A14 effective May 1, 1998, and approved career development assistance but denied promotion.

### Applicant’s contentions and requests for documents/statistics
- Procedural and evidentiary contentions:
  - Alleged procedural defects in the DRE investigation, unqualified or conflicted reviewers, and denial of due process protections.
  - Argued the DRE should apply the “rebuttable presumption” standard in Applicant’s favor and that statistical analysis established she was paid and graded lower than average male economists.
  - Contended the “skills deficit” finding contradicted the written record and that oral assessments were improperly privileged.
- Document and data requests made under Rule XVII:
  - 1. An unredacted copy of the internal Notes made by the Fund staff member on the DRE review team.
  - 2. Any additional DRE documents not previously supplied.
  - 3. Comparator data for male senior economists.
  - 4. Data on the outcome of the DRE for all 67 cases examined.
- Tribunal rulings on document requests (decided July 28, 2005):
  - Request 1 denied: unredacted notes would not be of probative value given the available record; disclosure could contravene confidentiality assurances.
  - Request 2 denied: Fund represented all documents were provided during administrative review and Applicant presented no evidence additional documents existed.
  - Request 3 denied: Tribunal held Respondent’s design of DRE to use qualitative as well as statistical factors was not arbitrary; comprehensive comparator statistical data was not relevant to the legal question in the individual case.
  - Request 4 denied: DRE outcome data for all 67 cases would not prove discrimination in the DRE process overall or as applied to Applicant and was not relevant to Applicant’s individual legal questions.

### Legal standard of review and precedents applied
- Standard adopted: abuse‑of‑discretion review for DRE cases (as delineated in Ms. “Y” (No. 2)):
  - Tribunal will not overturn discretionary decisions unless shown to be arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or carried out in violation of fair and reasonable procedures.
  - Review is limited to (1) procedural regularity, (2) whether conclusions and ratification were reasonably supported by evidence, and (3) absence of bias—not a de novo relitigation of the underlying discrimination claims.
- Precedents and external tribunal decisions considered:
  - IMFAT Judgments: No. 1996-1; No. 2002-1; No. 2002-2; No. 2005-1.
  - World Bank Administrative Tribunal decisions cited to support that statistics alone do not prove individual discrimination (Sebastian (No. 2), WBAT Decision No. 57 (1988), para. 34; Nunberg, WBAT Decision No. 245 (2001)).

### Tribunal findings on procedural allegations, methodology, and bias
- Composition and conduct of review team:
  - External consultant qualifications met DRE requirements; internal member had significant HR experience; no evidence the external member’s role was improperly constrained.
  - Cross‑checking and periodic meetings among teams were used to ensure consistency; Tribunal found procedures consistent with other teams and reasonable.
- Role of Administration Department and Diversity Advisor:
  - ADM’s coordination role and cross-team meetings were appropriate quality control measures.
  - The Diversity Advisor had not observed Applicant’s workplace interactions; whether she should have been interviewed as a contact is open to question, but her views did not decisively affect the outcome.
- Institutional bias allegation:
  - Tribunal found no evidence of institutional bias against Applicant arising from her advocacy activities.
- Methodological criticism:
  - Tribunal concluded Respondent’s decision to base DRE reviews on both qualitative and statistical factors was not arbitrary, capricious or discriminatory.
  - Tribunal found no evidence that the methodology prejudiced the outcome or improperly privileged oral assessments over written records.

### Tribunal assessment of evidence on discrimination and promotion prospects
- On the finding of non‑discrimination:
  - Tribunal sustained the DRE conclusion that Applicant’s career was not proven to have been adversely affected by discrimination under the DRE’s scope and standards.
  - The Tribunal recognized: Applicant manifested some early analytical weaknesses in some interviews, these were largely attenuated later, and non‑advancement from A14 to A15 is affected by competition and limited A15 positions.
  - The DRE granted relief for “unfair or uneven treatment,” consistent with the Consultants’ Report’s design and limits.
- On the remedy and implementation:
  - Tribunal held the 6.5 percent salary adjustment and career development assistance were within the Director’s discretion and reasonably based on the review team’s investigation.
  - Tribunal concluded there was insufficient proof that the DRE report was used to deny promotion; market forces and independent assessments influenced promotion decisions.
  - Tribunal found Applicant had been given “stretch” assignments, mission opportunities, and ultimately the Resident Representative post, indicating opportunities to demonstrate skills.
- On post‑decision allegations and exhaustion:
  - Tribunal applied Article V of the Statute requiring exhaustion of administrative review channels for post‑decision complaints; generalized claims of “continuing” discrimination were deemed not admissible or lacked evidentiary support.
  - Tribunal elected to pass on implementation and misuse allegations where those were closely linked to the DRE decision and had been given some measure of grievance review.

### Final decision and disposition
- The Administrative Tribunal unanimously decided to deny the Application of Ms. “W”.
- Relief sought by Applicant (as recorded) included findings the DRE team failed to reach correct conclusions and other remedies; the Tribunal did not grant those requests.

*The Administrative Tribunal of the International Monetary Fund. Washington, D.C. November 17, 2005.*

### Introduction

### Introduction

### Background of the case
- On July 28 and 29, 2005, the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Michel Gentot and Agustín Gordillo, Associate Judges, met to adjudge the case brought against the International Monetary Fund by Ms. “W”, a staff member of the Fund.
- Applicant challenged the former Director of Administration’s approval of the conclusions of a review team constituted under the Discrimination Review Exercise (DRE), a special, one-time inquiry initiated by the Fund in the late 1990s.
- Applicant’s DRE claim: salary and grade level were adversely affected by gender discrimination; sought a pay increase and a promotion from Grade A14 to A15.
- DRE review team conclusions:
  - No discrimination in Applicant’s career with the Fund.
  - Circumstances of Applicant’s initial departmental assignment may have hampered career progression.
  - At various points “skill deficits” may have been “magnified.”
- Director of Administration ratified the DRE team’s finding of no discrimination but approved:
  - A within-grade salary increase, and
  - Career development assistance to strengthen Applicant’s ability to compete for positions at the next grade level.
  - Denied Applicant’s request for promotion.

### Applicant’s contentions before the Tribunal
- Procedural defects in the DRE investigation.
- The Director’s conclusion that Applicant’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 slower career progression relative to male colleagues.
- The Fund failed to implement prospective career development measures approved as part of the remedial action.
- The Fund improperly used the DRE report to influence denial of a promotion and continued to discriminate on the basis of gender.

### Respondent’s position
- The DRE process applied in Applicant’s case was an appropriate exercise of the Fund’s discretion.
- The 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.
- Contended that Applicant had not exhausted administrative review procedures for certain contentions and that those contentions, in any event, lacked merit.
- Urged the Tribunal to deny Applicant’s Application.

### Procedural history and pleadings
- November 19, 2003: Applicant filed an Application with the Administrative Tribunal.
- Registrar advised deficiencies under Rule VII, para. 3; Applicant corrected within the 15-day period and the Application is considered filed on the original date.
- December 10, 2003: Application transmitted to Respondent.
- January 6, 2004: Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4.
- January 26, 2004: Respondent filed its Answer.
- March 1, 2004: Applicant submitted her Reply.
- April 1, 2004: Fund’s Rejoinder filed.
- Tribunal decided oral proceedings were not necessary; relied on the record, including transcript of Grievance Committee oral hearings and prior holdings that the Tribunal may weigh the Grievance Committee record as evidence (see IMFAT Judgment No. 1996-1, para. 17).

### Requests for production of documents (Rule XVII)
Applicant requested production of:
- 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 action on document requests (decided July 28, 2005):
- The Tribunal denied each document request after considering parties’ submissions, the Grievance Committee record, and applicable Rules.

Details on each request and Tribunal reasoning:
- Request 1 (unredacted “Notes on [Ms. ‘W’]”):
  - Redacted notes provided to Applicant omitted interviewee names.
  - During Grievance proceedings, the Legal Department disclosed names of nine staff members interviewed and several testified.
  - Applicant conceded most interviewees were identified and testified.
  - Respondent argued unredacted disclosure would contravene assurances of confidentiality and increase risk of availability of a highly sensitive document.
  - Tribunal found Respondent’s approach to disclosure inconsistent but denied the request because disclosure would not be of probative value given the entire available record (citing IMFAT Judgment No. 2005-1, para. 15 as precedent denying production where similar information existed elsewhere).

- Request 2 (any additional DRE documents not previously supplied):
  - Fund represented that all documents pertaining to the DRE review of Applicant’s case were provided to counsel during the administrative review process.
  - Applicant did not present evidence suggesting additional responsive documents existed.
  - Request denied on the basis Applicant had not shown she was denied access to documents by the Fund (Rule XVII, para. 1), consistent with precedent (IMFAT Judgment No. 2005-1, para. 9).

- Request 3 (comparator data for male senior economists):
  - Applicant sought comparator data to show male economists with equivalent credentials progressed to A15 and higher; alternatively sought a stipulation that the conclusions of the Report on the Status of Women in the Fund apply to her case (i.e., a one grade anomaly for women economists).
  - Fund explained the DRE team relied primarily on qualitative evidence to determine appropriate grade level and used statistics only to determine salary adjustment magnitude; DRE adjustment was based on findings that initial assignment and “skill deficits” affected progression.
  - Tribunal framed the issue as whether the Fund’s reliance on qualitative as well as quantitative factors in DRE reviews was an abuse of discretion.
  - Tribunal recalled IMFAT precedent upholding general contours and flexibility of the DRE process (IMFAT Judgment No. 2002-2, paras. 49 and 55) and recognized that the Tribunal was not being asked whether statistical analysis may prove discrimination but whether the Fund could reasonably include qualitative factors in its ad hoc remedy process.
  - Respondent presented evidence that in developing the DRE it considered the role of statistical evidence, consulted expert reviewers, and concluded aggregate analysis could not demonstrate discrimination conclusively in individual cases; the Chair of the Working Group endorsed that such analysis cannot be applied in a “mechanical way.”
  - Tribunal concluded Respondent’s decision to base DRE reviews on both qualitative and statistical factors was not arbitrary, capricious or discriminatory.
  - Tribunal referenced World Bank Administrative Tribunal decisions (Sebastian (No. 2), WBAT Decision No. 57 (1988), para. 34; Nunberg, WBAT Decision No. 245 (2001)) finding that general statistics alone do not prove individual discrimination and noting Nunberg’s rejection of reliance on individual regression analysis as dispositive.
  - The Tribunal denied Applicant’s request for comprehensive comparator statistical data, noting the question raised was substantive as to DRE methodology and the Fund’s discretionary design of the DRE process.

### Legal and evidentiary framework referenced
- Tribunal applied provisions of:
  - Rule VII (Applications), including para. 3 and para. 6 concerning document annexes and cure period.
  - Rule XIV, para. 4 (Registrar’s summary within the Fund).
  - Rule XVII (Production of Documents), including para. 1–4 (Tribunal’s authority to order production, consider relevance, privacy, and in camera review; President’s powers when Tribunal not in session).
- Precedents and external tribunal authority cited:
  - IMFAT Judgment No. 1996-1 (Mr. M. D’Aoust) — Tribunal authorized to weigh Grievance Committee record (para. 17).
  - IMFAT Judgment No. 2005-1 (Mr. “F”) — precedent denying production where similar information exists elsewhere (para. 15) and denying requests absent evidence of Fund’s withholding (para. 9).
  - IMFAT Judgment No. 2002-2 (Ms. “Y” (No. 2)) — upheld DRE process contours, flexibility, and review teams’ latitude (paras. 49, 55).
  - IMFAT Judgment No. 2002-1 (Mr. “R”) — managerial discretion upheld when deliberate and after “extended consideration” (para. 63).
  - World Bank Administrative Tribunal: Sebastian (No. 2), WBAT Decision No. 57 (1988), para. 34; Nunberg, WBAT Decision No. 245 (2001) — statistics alone insufficient to prove individual discrimination; regression analysis not dispositive.

- The Tribunal framed key legal questions for further consideration:
  - Whether the methods employed by the DRE review team in Applicant’s case, particularly the use of statistics, represented an abuse of discretion.
  - Whether Respondent reasonably applied qualitative considerations in (1) concluding promotion to the next grade level was not warranted, and (2) determining the extent of the salary adjustment awarded through the DRE process.

*Administrative Tribunal of the International Monetary Fund, meeting July 28 and 29, 2005.*

### 25.      In its October 2, 2002 Order in Ms. “W”’s case, the Fund’s Grievance Committee

### j2005-2 - 25. In its October 2, 2002 Order in Ms. “W”’s case, the Fund’s Grievance Committee

### Grievance Committee rulings on relevance of statistical analysis and comparator data
- The Fund’s Grievance Committee concluded in its October 2, 2002 Order that: “…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 basis of the Administrative Tribunal’s conclusion (supra, para. 21) that Respondent’s decision to base the DRE review of individual cases upon 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.

### Request 4 — Data on the outcome of the DRE and denial rationale
- 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....”
- Applicant prepared a self-generated tabulation of outcomes that differs from the tabulations compiled in the Report of the Consultants on the Discrimination Review.
- For the reasons set forth under Request 3, the Tribunal found that such data on DRE outcomes would neither prove conclusively that the DRE process in general was discriminatory nor that the process as applied in Applicant’s case was discriminatory.
- The Grievance Committee reached the same conclusion in its October 2, 2002 Order.
- The document request for DRE outcome data was denied on the ground that the requested information was not relevant to the questions at issue in the case.

### Factual background — Ms. “W”’s career summary
- Applicant began her career with the Fund on February 1, 1982 as an Economist at grade G (equivalent to A12) in “Department 1.”
- Promotions and transfers:
  - Promoted to Grade A13 in 1986.
  - Transferred to “Department 2” in 1989.
  - Moved to “Department 3” in 1992; promoted to Senior Economist at Grade A14 in 1995.
  - Transferred to “Department 4” in 2000.
  - Took post as a Fund Resident Representative in 2004 while continuing as Senior Economist at Grade A14.
- Applicant held a master’s degree in economics and was active in staff advocacy roles, including membership in the Working Group on the Status of Women; she received praise from the Working Group’s Chair for supervising statistical analysis performed by outside consultants.

### Discrimination Review Exercise (DRE) — scope, procedures, and methodology
- The DRE was an exceptional, one-time inquiry into alleged discrimination cases submitted to the Director of Administration between August 28 and September 30, 1996.
- Purpose: to investigate and remedy, through an alternative dispute resolution mechanism, instances of past discrimination that had adversely affected Fund staff careers.
- Origins: followed the 1992 Survey of Staff Views and subsequent studies; related publications included the Working Group on the Status of Women Report Equity and Excellence (May 1994) and Pelerei, Discrimination in the Fund (July 1995). The Managing Director issued Discrimination in the Fund (December 1995) recommending an alternative dispute resolution procedure.
- Announcement and procedures:
  - Framework announced August 28, 1996 in a Memorandum to Staff, providing avenues for case identification including self-identification.
  - Memoranda (February 9, 1996; July 26, 1996; January 13, 1997) described use of external consultants assisted by Fund staff, confidentiality measures, and focus on prospective remedies within existing personnel policies.
- Consultants’ role and team composition:
  - 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 regular committee to ensure consistency.
  - Individual reviews consisted of (1) an initial interview with the applicant; (2) interviews with authorized contacts (supervisors, subordinates, peers, others); (3) statistical analysis, where required; and (4) a feedback interview with the applicant.
  - Approximately 600 contact interviews were conducted.
  - Outside consultants made final determinations regarding merit of claims and suggested remedial actions; remedies were limited by constraints including promotion opportunities, applicants’ current competitiveness, budgetary constraints, time-in-grade requirements, and promotion procedures of review committees.

### DRE outcomes and statistics reported by the Consultants’ Report
- Cases reviewed and primary alleged bases:
  - Some 70 cases were reviewed.
  - Approximately 70 percent alleged discrimination primarily on grounds of race or nationality, 20 percent on grounds of gender, and 10 percent on grounds of age or religion.
- Recommendations and findings:
  - Review teams made recommendations for 67 of the 70 cases filed.
  - Indications of “unfair or uneven treatment” were identified in approximately half of the 67 cases.
  - The Report used categories of “Indications of Unfair or Uneven Treatment” versus “no such indications”; it did not use a category titled “discrimination.”
  - The Report stated: “The discrimination review exercise was not designed to prove the presence or absence of discrimination to a high legal standard.” It noted 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,” while in the majority of cases judgments were more subjective and sometimes based on sketchy evidence going back 20-25 years.
- Distribution of primary factors where unfair treatment was found:
  - 77 percent linked primarily to race/nationality.
  - 20 percent linked primarily to gender.
  - 3 percent linked primarily to age.
- Remedies and remedial outcomes:
  - Promotions:
    - In 17 of the 35 candidates for whom there was an indication of unfair or uneven treatment, the primary remedial outcome was a promotion.
    - 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:
    - In another 15 of the 35 cases with indications of unfair treatment, a within-grade-salary adjustment averaging 6.2 percent was the primary remedial action.
    - 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 explained that relatively low starting salaries for women accounted for a number of the cases of unfair treatment identified.
  - Additional support:
    - Many beneficiaries of promotion and/or within-grade adjustments also received training, reassignments, coaching, and mentoring.
    - In three cases with identified unfair treatment, remedial action did not involve promotion or within-grade adjustment but included career development support.
    - 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 was nevertheless provided as an outcome of the review.

### Application to Ms. “W” and procedural conclusion
- The Administrative Tribunal and the Grievance Committee treated the DRE as a process that combined qualitative and statistical factors; the Tribunal concluded that Respondent’s decision to base the DRE review of individual cases on both qualitative and statistical factors was not arbitrary, capricious or discriminatory.
- On that basis, Applicant’s requests for comparator data and for the DRE outcome tabulation for all 67 cases were denied as irrelevant to the legal questions at issue in Applicant’s individual case.

*Source: Administrative Tribunal record (Grievance Committee Order of October 2, 2002; Report of the Consultants on the Discrimination Review).*

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

### j2005-2 - 46

### Background and basis of Applicant’s request
- Director of Administration’s Memorandum to Staff: August 28, 1996.
- Applicant (Ms. “W”) requested DRE review: September 24, 1996, on ground that her Fund career had been adversely affected by gender discrimination.
- Applicant’s statistical assertions:
  - The Working Group on the Status of Women regression measured a statistically significant adverse treatment of women economists equal to 3.4 percent of women’s salaries on average.
  - Substituting Applicant’s data 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.
  - Ordered probit regressions indicated she should have been graded at A15 in 1993.
  - Applicant asserted remaining anomalies of 1 grade and $11,000 after a subsequent promotion and requested review and correction.

### DRE review process and investigative methods
- Review team composition and meetings:
  - Team appointed by the Fund consisting of an outside consultant (“external team member”) and an official of the Administration Department (“internal or Fund team member”).
  - Initial meeting with Ms. “W”: May 14, 1997.
  - Final meeting with Ms. “W”: April 21, 1998 (matters in that meeting were in dispute).
- Evidence sources used by the review team:
  - Paper record: Applicant’s Annual Performance Reports (APRs) and 1988 Long-Term Performance Assessment (LTPA).
  - Interviews with supervisors and other Fund staff familiar with Applicant’s career.
- Methodological stance adopted by the review team:
  - Began with the assumption that the Pelerei Study and the work of the Working Group established a “rebuttable presumption” of discrimination.
  - Team’s task was to determine if reasons other than discrimination explained Applicant’s career trajectory.
  - The team emphasized a qualitative review approach (questions, discussions, data collection) rather than running Applicant’s requested regression analysis.

### Review team findings
- Evidence of disparate treatment:
  - Team found indications that Applicant was treated differently from male colleagues, notably that in her first Division (Department 1) she was “not given prime assignments.”
  - Department 1 was described by the team as “known at the time as not having a good record for promoting women.”
- Identified performance-related factors:
  - Team identified a “skill deficit” it described as a tendency to produce “mountains of data” without corresponding focus on the “big picture” (termed the “forest for the trees” problem).
  - This tendency was noted primarily in Applicant’s early APRs and discussions regarding the early period of her career.
  - The team found the deficit had attenuated after Applicant’s transfer to Department 3; no mention of this issue in APRs since the transfer.
  - In Department 2, Applicant was “viewed as possessing limited analytical skills” and “not view[ed]...as competitive with her peers with respect of the breadth of skill required for Area Department work.”
  - In Department 3, Applicant’s work was regarded as “as good as 90% of the other Senior Economists in the Fund” and she was seen as “an extremely hard worker and an excellent team player.”
- Rebuttal of presumption and overall conclusion:
  - The team concluded the “skill deficits” were sufficient to overcome the presumption of discrimination and therefore did not conclude Applicant had been discriminated against in her career.
  - Team summary: her initial assignment in Department 1 hampered her early career; she appears to have overcome major impediments; she had been given some supervisory responsibilities.

### Remedy recommended by the DRE review team and Director of Administration decision
- Review team recommendations:
  - 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;”
  - Provide supervisory responsibilities to assess management skills.
  - Provide assignments to develop and assess writing skills.
  - Encourage Applicant to apply for A15 vacancies in Department 3 and elsewhere with support from ADM if she performed well.
- Director of Administration decision (memorialized by memorandum to Applicant: May 21, 1998):
  - Approved remedial action to include a 6.5 percent salary adjustment within Grade A14 effective May 1, 1998.
  - Stated that although no evidence of discrimination was found, the team concluded Applicant’s initial assignment may have slowed her career and skill deficits may have been magnified at different points.

### Administrative review, Grievance Committee, and Tribunal filings
- Grievance and review chronology highlights:
  - Applicant initially filed a Grievance: May 15, 1998.
  - Further Grievances filed: July 20, 1998 and December 30, 1998.
  - Administrative uncertainty over relationship between DRE process and GAO No. 31 resolved in precedent (Administrative Tribunal in Ms. “Y”): December 18, 1998.
- Grievance Committee consideration and outcomes:
  - Grievance Committee issued Recommendation and Report: July 2, 2003.
  - Committee found the DRE review team’s investigation “...thorough and in keeping with the procedures set forth [for the DRE process]” and that Grievant’s pace of advancement was not based on gender discrimination but on her own shortcomings.
  - Committee concluded the review team was not arbitrary, capricious or discriminatory in its finding that Grievant was not discriminated against.
  - Committee found the method of arriving at the 6.5 percent remedy appeared “reasonably based.”
  - Committee recommendation included an ex gratia payment for legal fees; management accepted the recommendation on July 15, 2003 and accepted an increased amount communicated to Applicant on August 20, 2003 (management’s acceptance constituted the final determination triggering the three month statute of limitations under Article VI of the Tribunal’s Statute).
- Application to the Administrative Tribunal:
  - Applicant filed her Application with the Administrative Tribunal: November 19, 2003.

### Applicant’s principal contentions (summarized points)
- Procedural and due process claims:
  - DRE lacked due process protections; procedural defects materially affected outcome.
  - Review team members were unqualified, conflicted, and constrained the outside consultant.
- Evidentiary and methodological claims:
  - DRE review should be held to the review team’s adopted standard that earlier Fund studies established a “rebuttable presumption” of discrimination.
  - Applicant’s statistical analysis using accepted methods showed she was paid and graded lower than the average male economist despite better-than-average performance.
  - DRE failed to establish non-discriminatory explanations for her slower progression.
  - The review team expressly found disparate treatment existed between Applicant and male colleagues.
- Substantive rebuttals to the review team’s conclusions:
  - The “skills deficit” finding was without merit and contradicted the written record praising Applicant’s hard work, initiative, in-depth analysis, policy work, and exceptional quantitative skills.
  - Review team displayed bias by focusing on rebuttal factors and privileging oral assessments that contradicted the written record, mischaracterizing Applicant with the “forest-for-the-trees” label.
- Remedies and process criticisms:
  - Director of Administration ratified review team findings based on incorrect information and analysis; conclusions not “reasonably supported by evidence.”
  - Respondent used a biased statistical analysis with an inappropriate comparator group to determine the remedy and refused to provide statistical information requested by Applicant.
  - An oral offer of possible promotion to Grade A15 within one year was allegedly made by the outside consultant but apparently reversed by the Administration Department.
  - The remedy implemented (6.5 percent salary adjustment) followed a pattern benefiting male complainants more than female complainants.
  - Apart from the pay adjustment, Respondent allegedly took no action on prospective career measures awarded by the DRE and continued to discriminate against Applicant.
  - Respondent improperly used the DRE report to influence denial of a promotion for which Applicant applied.
- Relief sought by Applicant (partial list from the record):
  - Findings by the Tribunal that the DRE team failed to reach correct conclusions (further details of requested relief continue beyond excerpt).

*Source: Administrative Tribunal record regarding the DRE review of Ms. "W".*

### conclusions on the evidence and the Fund’s decision rejecting a

### conclusions on the evidence and the Fund’s decision rejecting a

### Respondent’s principal contentions
- 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).
- 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.
- The Administration Department’s role in the DRE process was not improper and contributed to making the DRE a fair and reasonable exercise.
- 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.
- The DRE review team’s conclusions were reasonably based on its review of Applicant’s claim.
- The review team’s finding of skills deficits rebutted the presumption of discrimination; the team consistently noted strong quantitative and computer skills but a comparative need to develop analytical skills.
- 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 magnified rather than minimized was substantiated.
- Applicant did not present probative evidence that her early career at the Fund had been adversely affected by gender discrimination; the review team appropriately concluded her career had been hampered by poor management.
- 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.
- 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 reasonably concluded statistical analysis did not provide a sufficient or appropriate basis for making findings and fashioning remedies in individual cases.
- The DRE 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, but correctly determined Applicant’s individual claim needed review in light of the actual facts of her career history.
- In light of lack of evidence of gender discrimination and the view that Applicant needed to further develop skills essential for higher grades, the DRE review team reasonably concluded Applicant was at the appropriate grade level.
- The remedy of a 6.5 percent salary adjustment was reasonably based on the review team’s investigation; Applicant’s salary was properly compared with other senior economists of her grade and age range.
- It was consistent with DRE procedures that Applicant be given assignments to develop and assess her skills to strengthen competitiveness for higher level positions.
- Applicant’s argument that the remedy recommended reflected a pattern whereby the DRE itself was discriminatory against women was not credible and not supported by evidence.
- Applicant has not shown any DRE recommendation that she be promoted to Grade A15 within one year; in any event, such a recommendation would have been inconsistent with Fund policies and DRE guidelines.
- Applicant has not exhausted administrative review procedures as to claims that the Fund failed to follow through on DRE recommendations and continues to discriminate against her on the basis of gender; these claims are therefore not properly before the Tribunal.
- In any event, the claims of failure to follow through are unfounded: Applicant has been given assignments to enhance 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 cases of Ms. “W” and Ms. “Z” are the last arising from the Discrimination Review Exercise (DRE) to be presented for review by the Administrative Tribunal; the Tribunal previously established the review framework in Ms. “Y” (No. 2).
- In Ms. “Y” (No. 2), the Tribunal delineated a limited measure of review: de novo review of underlying discrimination claims was generally foreclosed where mandatory time periods under GAO No. 31 had expired; review was instead limited to challenges to the fairness of the DRE process and to the Director of Administration’s decision affirming the DRE team’s conclusions.
- The Tribunal held that examination of the Director’s decision necessarily entails some consideration of whether the Applicant’s career suffered discrimination, but this is distinct from a de novo examination of the underlying claims.
- The Tribunal recognized the DRE as a lawful exercise of the Fund’s discretionary authority aimed at remedying lingering allegations of past discrimination beyond statutory time bars, noting the DRE’s procedures (e.g., confidentiality and lack of a written record) appeared rationally related to its purposes.
- The Tribunal adopted an abuse-of-discretion standard in reviewing individual DRE cases: 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.
- Under that standard, the Tribunal examines:
  - whether DRE procedures applied in the individual case were consistent with procedures established for the DRE and with those applied in other cases;
  - whether the DRE team’s conclusions and their ratification by the Director of Administration were reasonably supported by evidence;
  - whether the investigation was tainted by any bias.

### Consideration of the issues in Ms. “W”’s case — procedural allegations
- Applicant’s procedural challenges fall into categories:
  - composition of the review team and roles of internal and external members;
  - influence of the Administration Department and its Assistant Director;
  - role of the Fund’s Diversity Advisor;
  - alleged institutional bias against Applicant;
  - DRE methodology applied in the case, including application of a “rebuttable presumption” and the balance of qualitative and statistical evidence.

Composition of review team and roles of internal and external members
- Applicant contended review team members were unqualified, some Fund officials were biased, and the external member’s role was improperly constrained; Respondent denied these charges.
- Tribunal findings:
  - External team member’s qualifications—experience in mediation and alternative dispute resolution, including mediation of employment discrimination cases—met those prescribed in the Memorandum to Staff of January 13, 1997, which required outside consultants to have “...a mixture of backgrounds with expertise covering discrimination, diversity, arbitration and mediation.”
  - Internal team member’s qualifications—significant human resources experience within the Fund—were consistent with DRE expectations.
  - There was no evidence that the external member’s role was improperly constrained by Fund officials.
  - Both team members testified they worked together, dividing interview lists and jointly drafting the report; the external member stated the partnership was “a very smart decision” and that they “tried to do everything by consensus.”
  - The Consultants’ Report summarizing the DRE noted that initial and final interviews were conducted by both members, many contact interviews by a single member, and that outside consultants made final determinations regarding the merit of claims, within the context that ultimate decisions rested with the Director of Administration.

Influence of the Administration Department and its Assistant Director
- Applicant alleged inappropriate influence by the Administration Department and its Assistant Director; Respondent presented testimony on coordination and quality control.
- Tribunal findings:
  - The Assistant Director of Administration had a dual role: member of one of the five review teams (not Ms. “W”’s team) and assisting the Director of Administration in coordinating the overall review to ensure quality control and consistency across the approximately 70 cases.
  - The five review teams, the Director of Administration, and the Diversity Advisor met as a group before reviewing individual cases to consider procedures and methodology.
  - These cross-team meetings included discussion of a sample of 15 – 20 cases so review teams could benefit from broader views and “cross fertilization,” a practice described in the Consultants’ Report.

### Application of the Ms. “Y” (No. 2) standard and scope of review
- The Tribunal applies the standard developed in Ms. “Y” (No. 2): a limited review of DRE cases focused on procedural regularity, reasonableness of conclusions, and absence of bias, not a de novo re-litigation of the underlying discrimination claims.
- The Tribunal will assess:
  - whether the procedures in Ms. “W”’s DRE review were consistent with DRE procedures and other team practices;
  - whether the DRE team’s conclusions and the Director of Administration’s affirmation were reasonably supported by evidence;
  - whether any bias tainted the investigation.

*Administrative Tribunal judgment in the case of Ms. “W” (Discrimination Review Exercise), Administrative Tribunal (IMF).*

### 78.      Both of the team members assigned to review Ms. “W”’s complaint indicated in their

### j2005-2 - 78. Both of the team members assigned to review Ms. “W”’s complaint indicated in their

### Cross‑checking and review procedures
- Both team members testified that a process of cross‑checking was employed in Applicant’s case; the external member described periodic meetings to achieve consistency in approach and conclusions: “We wanted as much consistency as we could have just on the way we were doing things and how we were drawing conclusions. And the only way to do that...is to meet periodically and talk.... ...we’d talk about a case at the point that the team had come to its conclusion about a recommendation, we’d talk it through and try to answer questions from other team members about how we drew that conclusion and what that might lead to. ... The kind of consistency that we were trying to achieve was sort of a general consistency in how we were approaching things and how we were reaching conclusions.”
- The Tribunal finds:
  - The procedures followed were consistent with those of other teams.
  - The procedures were reasonable.
  - The measure of involvement of the Administration Department (ADM) was appropriate and helped assure consistency with DRE procedures used in other cases.

### Role of the Fund’s Diversity Advisor
- Facts and testimony:
  - The Diversity Advisor conceded that she had not observed Ms. “W”’s interactions with co‑workers in Applicant’s departmental work environment but had gained impressions of Ms. “W” in exchanges relating to the Report of the Working Group on the Status of Women in the Fund and the implementation of the DRE.
  - It is unclear on whose invitation the Diversity Advisor was treated as a “contact.”
  - Applicant alleges the Diversity Advisor asked to sit in as an “observer” and that Applicant was not aware she would also be an interviewee.
  - When interviewed and when testifying, the Diversity Advisor characterized Ms. “W”’s insistence on the probative force of statistics as “aggressive,” and her views supported the perception that Applicant’s analytical abilities did not match her statistical strengths.
  - Applicant attributed the Diversity Advisor’s perceptions to a difference in their respective roles with respect to the DRE.
- Procedural reference:
  - The January 1997 Memorandum to Staff on the DRE procedures stated that the Diversity Advisor “...will not be involved in the actual reviews of individual cases.”
- Tribunal conclusion:
  - There is ground for questioning whether the Diversity Advisor should have been interviewed as a contact.
  - Her role does not appear to have had a decisive influence on the disposition of Ms. “W”’s case, since her critical characterizations were consistent with those of some other contacts.

### Allegation of institutional bias against Applicant
- Applicant’s claim:
  - Ms. “W” alleges her outspoken staff advocacy role had a prejudicial effect on the DRE evaluation and that she developed an adversarial relationship with the Assistant Director of Administration.
- Respondent testimony:
  - The ADM Assistant Director testified he had a high regard for Applicant’s work on behalf of staff and that his prior experience did not create “any bias one way or another.”
  - A Fund team member knew Ms. “W” to be “active and outspoken” but “personally admired her for it” and did not recall anyone referring to Ms. “W” as an “activist.”
- Tribunal finding:
  - No evidence supporting Applicant’s speculation of institutional bias in the DRE emerged; the Tribunal concludes 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
- Applicant’s methodological complaints:
  - Agrees there was a “rebuttable presumption” of discrimination but challenges the propriety and application of the effort to find rebutting elements (i.e., performance deficiencies) as prejudicial.
  - Maintains that statistical evidence alone suffices to establish adverse effect by discrimination.
  - Alleges the review team focused on rebuttal factors (skill deficits) rather than discrimination, and that discrepancies between her written performance records and interview reports evidence unfair procedure.
- Tribunal analysis of procedure and discretion:
  - The DRE procedures were flexible and contemplated a considerable degree of latitude for review teams.
  - The Memorandum to Staff from the Director of Administration, “Review of Individual Discrimination Cases,” August 28, 1996, stated review methods would depend on the nature of circumstances giving rise to the claim.
  - Applicant proffered no specific instances or acts of discrimination; consequently the review team’s inquiry into other impedimenta to career progression was within the leeway provided.
  - The Tribunal concludes there is no evidence that the methodology (looking beyond statistical evidence to qualitative factors) prejudiced the outcome.
  - The Tribunal reaffirms (see supra, para. 21) that Respondent’s decision to base DRE reviews on qualitative as well as statistical factors was not arbitrary, capricious or discriminatory.

### Sustainability of the DRE findings and conclusions
- Standard of review:
  - Conclusions must not be arbitrary or capricious and must be reasonably supported by evidence; the Tribunal “... must satisfy itself that the contested decision is reasonably supported by evidence gathered by the DRE team.”
- Two principal contested outcomes:
  1. The finding that Applicant’s Fund career was not adversely affected by discrimination.
  2. The determination of the remedy for unfair or uneven treatment.
- The finding of non‑discrimination:
  - Parties accepted appropriateness of proceeding from a “rebuttable presumption” of discrimination.
  - Review team findings (testimonial summaries):
    - Fund team member summarized consistent themes: Applicant had “exceptionally good quantitative skills, computer programming skills and data management skills” and “a tendency to rely too much 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.” She characterized this as a “forest‑for‑the‑trees” problem present in “all but one” of her interviews.
    - External team member: “things were mixed,” with some deficits and some strengths; the “notion that there were some deficits” led the team to conclude the presumption of discrimination had been overcome.
  - Reported contextual findings:
    - The review team presented the “forest‑for‑the‑trees” problem as limited and largely overcome, noting it was encountered in the “early period” of Applicant’s Fund career and had “attenuated” since her transfer to “Department 3.”
    - The report noted Applicant “... appears not to have received the benefit of any doubts, and her skills deficits appear to have been magnified rather than minimized.”
  - Tribunal assessment:
    - Evidence that Applicant manifested inadequate analytical skill earlier in her career is mixed; not generally sustained by annual performance reports; some but inconsistent support in interviews.
    - Non‑advancement from Grade A14 to Grade A15 is affected by competition; a large proportion of economists in Grade A14 are not promoted to Grade A15.
    - Respondent pleads more than half of Fund economists hold Ph.D. degrees (a credential Applicant does not possess).
    - A “bottleneck” at A14 exists because the number of A15 positions in each economic department normally cannot exceed the number of divisions plus one.
    - The Diversity Advisor emphasized the limited number of A15 positions and that only a few staff are promoted to that grade.
    - The fact of non‑advancement is therefore not proof of discrimination.
  - Disparate treatment observations:
    - The review team reported “...indications that she was treated differently from her male colleagues,” including an early assignment where she was “not given prime assignments” in a Department “...known at the time as not having a good record for promoting women....”
    - Respondent contends Applicant has not presented probative evidence that her early career was adversely affected by gender discrimination and that poor management hampered her career.
    - The Fund team member acknowledged concern that Applicant’s initial Department had a record of not promoting women.
  - Comparative and design considerations:
    - The Consultants’ Report on the Discrimination Review Exercise found “indications of unfair or uneven treatment” in approximately half of the cases reviewed; Applicant’s case was apparently among these.
    - The DRE did not include a category titled “discrimination” and noted only in a “small number of cases” was there “clear evidence of discrimination.”
    - The Consultants’ Report explained the DRE “was not designed to prove the presence or absence of discrimination to a high legal standard.”
  - Tribunal conclusion on sustainability:
    - The Tribunal sustains the conclusion of non‑discrimination on the basis that:
      - Relief was awarded to Applicant for “unfair or uneven treatment.”
      - The Director of Administration gave weight to findings that Applicant was treated differently in her early career and that skill deficits were unfairly magnified.
      - The DRE was not designed to determine “discrimination” to a legal standard.
      - Given the limited depth of review applicable to DRE cases, it was not arbitrary or capricious for the Fund to conclude Applicant’s career was not adversely affected by discrimination.

### Remedy granted through the DRE process
- Remedy awarded:
  - A 6.5 percent salary adjustment and career development assistance were granted to Applicant.
- Applicant’s objections:
  - Applicant disputes adequacy, primarily because remedy did not include the promotion she claimed entitled by her statistical analysis.
  - Applicant contends an external team member indicated (in a feedback meeting) that a promotion of one grade level within one year would be part of remedial action; Applicant offers handwritten notes as support.
  - The team member testified he did not recall whether he had made such a recommendation.
- Tribunal focus:
  - The central question is whether the Director of Administration abused discretion in selecting the remedy ultimately awarded.

*The Tribunal’s findings and conclusions with respect to the review of Ms. “W”’s DRE complaint and the decision ratified by the Director of Administration (decision of May 21, 1998) are reflected above.*

### 105.      The Consultants’ Report prepared at the conclusion of the Discrimination Review

### The Consultants’ Report prepared at the conclusion of the Discrimination Review

### Scope and nature of remedial recommendations
- The Consultants’ Report indicated that outside consultants “suggested” remedial action on a case-by-case basis, and that those suggestions were advisory rather than determinative.
- The Director of Administration retained final decision-making authority over remedial outcomes: “…in the end, the director of Administration was the person taking decisions, the consultants were advisory, so...[the Director of Administration] would have been able to have overruled a recommendation.”
- In Ms. “W”’s case, the external consultant noted that determination of a remedy was subject to cross-checking among the larger group of review members.

### Constraints on remedies under Fund human resources policies
- The DRE remedies were to “generally be … prospective and fall within the Fund’s existing personnel policies, including reassignments, training and other development initiatives, promotions and salary adjustments.” (Memorandum of January 13, 1997; Consultants’ Report, pp. 4-5.)
- Guidance to review teams emphasized that remedies must “...fall within the framework of the human resources policy that existed in the Fund.....”
- The Administration Department’s policy approach “...precluded making a recommendation that someone be...promoted outright from A14 to A15” when the new position involved different job content; such promotions were distinguished from “career progression” promotions.
- Additional factors identified by the Consultants’ Report that might 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.” (Consultants’ Report, p. 5.)

### Frequency and types of remedial outcomes
- The Consultants’ Report summarized outcomes: “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.” (Consultants’ Report, pp. 6-7.)
  - Among those 17 cases, promotions arose through varying mechanisms: already in process, internal market forces with some support, or specific management/ADM decisions outside the normal internal market framework.

### The Tribunal’s findings on promises, promotions, and rationality of decisions
- The Tribunal concluded that evidence did not show that Ms. “W” was ever promised promotion as a remedy in the DRE process.
  - Even if promotion within one year was allegedly suggested by an external team member, the Director of Administration could decline that recommendation without being arbitrary or capricious, given personnel policies and scarcity of Grade A15 economist positions.
- The Tribunal found the salary decision to be rationally based:
  - The review 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,” and this recommendation was adopted by the Director of Administration.
  - Because the team concluded qualitatively that Applicant was not entitled to a promotion, comparators for salary review were reasonably drawn from within Ms. “W”’s grade of A14.
  - By taking age as a proxy for experience, the Respondent afforded Ms. “W” the benefit of the doubt for salary adjustment:
    - The transmittal note observed that “[a]mong the non-discriminatory reasons why [Ms. “W”]’s salary is below the norm of her age group are that [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 terms of total years of relevant work experience, [Ms. “W’] compares more closely with those in a 46-47 year old age group where her salary is much closer to the norm.”
    - Data showed the majority of the 50-52 year-old A14 senior economists held Ph.D. degrees, whereas Applicant’s highest degree is a master’s degree.
    - The A14 senior economists spanned an age range “from 33 to 64.”

### Allegation of gender bias in remedial outcomes of DRE
- Applicant asserted that remedies disproportionately benefited male complainants and that her remedy fit a pattern of gender discrimination in DRE outcomes.
- The review team vigorously disputed any such pattern, and the Tribunal found no support for the contention.
- The Tribunal held that DRE outcomes generally would not be probative of discrimination in the DRE process overall or as applied in Applicant’s case.

### Outcome in Ms. “W”’s case and Tribunal’s overall conclusion on remedy sufficiency
- The Fund reasonably found that Applicant’s career was not adversely affected by discrimination but that her initial assignment may have hampered career progression and that skill deficits may have been magnified.
- The Fund exercised managerial discretion to grant a remedy composed of:
  - a 6.5 percent one-time salary adjustment; and
  - career development assistance intended “to help strengthen [her] ability to compete for positions at the Grade A15 level,”
  - while denying Applicant’s request for promotion.
- The Tribunal sustained the Fund’s decision as reasonable and sustainable under the DRE procedures.

### Admissibility of subsequent allegations and exhaustion of administrative review
- Applicant alleged failure to implement career development measures prescribed by the DRE, improper use of the DRE report to deny a promotion, and continuing gender discrimination arising after initiation of administrative review.
- The Fund argued that these post-decision complaints arose after Applicant’s initiation of administrative review and were not ripe for Tribunal consideration; Applicant argued they were “intimately related” to her DRE challenge.
- The Tribunal applied Article V of the Statute, which requires exhaustion of available channels of administrative review before filing with the Tribunal, and referred to prior judgments emphasizing the need for administrative remedies to be exhausted to allow opportunity for resolution and to build a detailed record.
- The Tribunal found that:
  - The implementation and misuse allegations were closely linked to the DRE decision and had been given some measure of review during the Grievance Committee proceedings and subsequent mediated procedures, providing an evidentiary record and opportunity for settlement; accordingly, the Tribunal would pass upon these allegations.
  - The more generalized allegation of “continuing” discrimination was not admissible and, in any event, lacked evidentiary support. The Tribunal declined to consider discrimination claims arising after the conclusion of the DRE process as part of a challenge to a DRE decision where those claims had not been pursued through required administrative review channels.

### Implementation of remedial action and Applicant’s contention
- Remedial components in Applicant’s case:
  - Salary adjustment: the 6.5 percent increase was implemented.
  - Career development assistance: Applicant contended that the Fund failed to effect the career development measures set out in the Director of Administration’s decision of May 21, 1998.
    - The May 21, 1998 decision stated 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 stated: “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.”

*Source: The Consultants’ Report prepared at the conclusion of the Discrimination Review (as summarized in the Tribunal’s findings).*

### 123.      In his testimony before the Grievance Committee, the Assistant Director of

### Administrative Tribunal Decision: Application of Ms. “W”

### Testimony on career development assistance and market forces
- The Assistant Director of Administration characterized career development assistance resulting from the DRE as driven primarily by market forces.
- He stated: “...I think we were hoping in the Human Resources Department that in cases like Ms. [“W”]’s, where the review team had made the recommendation that it did, that the Human Resources Department and the staff member’s department would help support...those market forces."
- He recalled making phone calls to encourage departments to interview staff who had applied for vacancies at the A15 level, and at the A9 level for a support staff member, but concluded that “the market forces were still the predominant ones.”

### Implementation actions taken for Ms. “W”
- The Assistant Director testified to a discussion with the front office in “Department 3” focused on “implementing one of the recommendations of the review team, which was to give Ms. [“W”]...an opportunity to compete for positions at the A15 level in [“Department 3”] and giving her assignments that might support that process of her being assessed and reviewed and putting her perhaps in a more favorable position to compete for senior level positions in [“Department 3”].”
- He reported the front office was “...very positive about wanting to give Ms. [“W”] ...every opportunity to compete.” He did not recall any specific vacancy for which Ms. “W” may have applied.
- The Senior Personnel Manager (SPM) of “Department 3” testified that Ms. “W” should be given an opportunity to demonstrate her abilities and that Applicant applied for two A15 positions, one in 1999 and one in 2000.
  - For the 1999 position, Applicant “was judged not to have proven sufficient analytical skills for the A15 level.”
  - The 2000 position was filled by another woman in the Department.
- The SPM testified that Applicant was given “stretch” assignments, including policy work and mission opportunities, and that Ms. “W”’s move to “Department 4” “...was seen as giving her the opportunity to further demonstrate her skills....”
- The record indicates Ms. “W” has been given assignments, such as mission assignments and her current Resident Representative post, in which she can demonstrate analytical capacities and managerial aptitude.

### Allegation that the DRE report influenced denial of promotion
- Applicant alleged the Fund improperly used the DRE review team’s report to influence denial of a promotion; a copy of the review team’s report was transmitted in September 1999 by an Administration Department official to the Senior Personnel Manager.
- Applicant maintained the report emphasized the “skill deficits” that rebutted the statistical presumption of discrimination and that its contents influenced the SPM’s judgment.
- The Tribunal observed that the review team’s report presented the “forest-for-the-trees” problem as limited and one that had been largely overcome (see supra para. 96).
- The SPM testified the report was not shared with others and denied it carried weight in the SPM’s own assessment; the SPM cited independent concerns (e.g., a mission assessment) suggesting Applicant needed more exposure to analytical policy work.

### Tribunal findings and conclusions
- The Tribunal declines to accept the contention that Applicant has not received the career development assistance contemplated by the DRE remedy, noting assignments and the Resident Representative post as opportunities to demonstrate skills.
- The Tribunal finds that 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 SPM was the factor or even a factor in Applicant’s failure to be granted a promotion.
  - For an economist not to succeed in a few applications for promotion to Grade A15 is not, by itself, evidence of discrimination.
  - The career development assistance granted as a result of the Discrimination Review Exercise is subject to “market forces.”
  - In one application to an A15 post, the successful candidate was a woman.
  - Ms. “W” appears to enjoy the confidence of the Fund’s administration to discharge increased responsibilities, as indicated by her appointment as a Resident Representative.
- For these reasons, the Tribunal concludes Applicant has not succeeded on claims that the Fund failed to implement career development assistance granted as a remedy in the DRE or that it used the DRE report to influence negatively Ms. “W”’s prospects of advancement.

### Decision
- The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Ms. “W” is denied.
- Signatories:
  - Stephen M. Schwebel, President
  - Michel Gentot, Associate Judge
  - Agustín Gordillo, Associate Judge
  - Celia Goldman, Registrar

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_Source: https://www.imf.org/-/media/files/imfat/j2005-2.pdf_