## j2005-4

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---

### Case overview and procedural history
- The Administrative Tribunal of the International Monetary Fund met on December 6 and 7, 2005, with Judges Stephen M. Schwebel (President), Nisuke Ando and Michel Gentot (Associate Judges), to adjudge the case brought against the International Monetary Fund by Ms. “Z”.
- Applicant contested the Director of Administration’s decision adopting the conclusions of a Discrimination Review Exercise (DRE) review team.
- Applicant alleged discrimination on the basis of gender, ethnicity or national origin, and age, and alleged procedural defects in the DRE investigation and lack of due process by the Fund’s Grievance Committee.
- Key procedural dates and filings:
  - Application filed with the Administrative Tribunal on March 10, 2004.
  - Application transmitted to Respondent on April 2, 2004; Respondent’s Answer filed May 14, 2004; Applicant’s Reply filed June 16, 2004; Respondent’s Rejoinder filed July 19, 2004.
  - Request for Information issued July 29, 2005; Fund replied August 2, 2005.
  - Applicant submitted an Additional Pleading on February 11, 2005 (merit increases since 1997); President included it in the record on February 25, 2005; Respondent objected on March 14, 2005.

### Admissibility and scope of Tribunal review
- The Tribunal applied Article V, Section 1 (statutory exhaustion requirement) and precedent (IMFAT Judgment No. 2005-2 and No. 2002-2) to limit admissible claims.
- The Tribunal excluded:
  - Claims relating to merit increases beginning in 1997 raised in the February 11, 2005 Additional Pleading (not “closely linked” to the contested May 29, 1998 decision and not given administrative review).
  - Generalized or “continuing” discrimination claims arising after the conclusion of the DRE process.
  - Allegations not given a measure of administrative review by the Grievance Committee.
- The Tribunal confined its review to whether the Director of Administration’s adoption of the DRE conclusions was arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.

### Applicant’s career timeline and status
- Employment and education:
  - Began Fund career June 23, 1980 as a Secretary at Grade B (equivalent to A4) in “Department 1.”
  - Held a bachelor’s degree in languages at hire; attained a master’s degree in education and human development in 1982.
- Promotions and transfers:
  - 1982: transferred to “Department 2” and within two months promoted to Grade C (equivalent to Grade A5) as a Personnel Clerk; remained until 1986.
  - 1986: became a Secretary in “Department 3,” at Grade A5; promoted to Grade A6 during tenure.
  - 1988: returned to “Department 2” as Personnel Assistant (later Human Resources Assistant) at Grade A6.
  - 1990: became a Grade 6 Administrative Assistant in “Department 4” following ill health.
  - 1992: transferred to “Department 5” as an Editorial Assistant; promoted in 1993 to Grade A7.
- Separation and benefits:
  - October 2004: Applicant’s position abolished and separation procedures initiated pursuant to GAO No. 16, Section 13.
  - Separation terms: eligible for maximum 22_-month separation leave period, with retirement from the Fund on August 1, 2007.

### Discrimination Review Exercise (DRE): purpose, methodology, and aggregate findings
- Nature and purpose:
  - The DRE was an exceptional, one-time inquiry for complaints brought to the Director of Administration between August 28 and September 30, 1996, intended as an alternative dispute resolution mechanism to investigate and remedy past discrimination affecting Fund staff careers.
- Team composition and conduct:
  - Reviews carried out by five review teams, each including one outside consultant and one Fund staff member; external consultants selected for expertise in discrimination, diversity, arbitration, and mediation.
  - Individual review steps included: (1) initial interview with applicant; (2) interviews with authorized contacts; (3) statistical analysis where required; (4) feedback interview with applicant.
  - During the DRE, teams conducted approximately 600 contact interviews.
  - Outside consultants made final determinations and suggested remedial action; remedies were constrained to prospective actions within existing personnel policies.
- Caseload and aggregate findings:
  - Number of cases reviewed: 70 cases.
  - Alleged grounds reported (approximately):
    - 70 percent alleged discrimination primarily on grounds of race or nationality.
    - 20 percent alleged discrimination primarily on grounds of gender.
    - 10 percent alleged discrimination primarily on grounds of age or religion.
  - The DRE 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 for which recommendations were made.
  - The Consultants’ Report stated only in a “small number of cases” was there “clear evidence of discrimination,” and noted many judgments were subjective and based on sketchy evidence dating back 20–25 years.
  - Distribution of primary factors where unfair or uneven treatment was found:
    - 77 percent linked primarily to race/nationality.
    - 20 percent linked primarily to gender.
    - 3 percent linked primarily to age.
- Remedies and incidence:
  - Promotion outcomes: In 17 of 35 candidates with indications of unfair or uneven treatment, the primary remedial outcome was a promotion.
  - Within-grade salary adjustments: In 15 of the 35 cases with indications of uneven or unfair treatment, a within-grade-salary adjustment averaging 6.2 percent was the primary remedial action.
  - In many cases with promotion and/or within-grade adjustment, staff also received training, reassignments, coaching, and mentoring.
  - In 10 of 32 cases in which no indication of unfair or uneven treatment was found, some supportive action was nonetheless provided.
- Gender-disaggregated outcomes:
  - Cases reviewed by gender: 37 men and 30 women.
  - Proportion with indications of unfair or uneven treatment: 53 percent of the women; 49 percent of the men.
  - Promotion incidence (primary remedy): 23 percent of women; 27 percent of men.
  - Within-grade adjustments by gender: 27 percent of women received within-grade adjustments; 19 percent of men received within-grade adjustments.
  - Average within-grade adjustment size: women 6.6 percent; men 5.7 percent.
  - Report attributed part of these differences to relatively low starting salaries for women.

### Application of the DRE to Ms. “Z”: investigation, findings, and remedial recommendation
- Applicant’s DRE request and allegations:
  - Request date: September 30, 1996, asserting adverse effect of “race and gender considerations.”
  - Written allegations included: starting salary lower than quoted at interview; placement “on probation” upon transfer to “Department 2”; adverse grading from the 1985 job grading exercise; practical demotion upon return to “Department 2” in 1988; mistreatment and “racist remarks” causing health problems; non-selection for vacancies; lack of remuneration for multiple language use.
- DRE process for Applicant:
  - Review team comprised an outside consultant and an Administrative Officer from a Fund department.
  - Initial meeting with Applicant on March 12, 1997.
  - Applicant provided additional Annual Performance Reports on September 26, 1997 and requested replacement of the external consultant on October 14, 1997 (request denied); final meeting held May 7, 1998; Director of Administration affirmed conclusions May 21, 1998; effective date of the one-time salary adjustment May 1, 1998; contested decision dated May 29, 1998.
- Review team findings for Applicant:
  - Identified a single irregularity: Applicant did not receive credit for bilingual skills (French and Spanish) when she joined in 1980.
  - Determined a 1991 salary adjustment was insufficient under Fund policies for extensive use of bilingual skills in “Department 1.”
  - Recommendation: a 4.0 percent one-time salary adjustment effective May 1, 1998.
  - Director of Administration approved the 4.0 percent one-time adjustment and stated that taking steps on Applicant’s behalf did not constitute evidence of discrimination.
- Applicant’s relief sought before the Tribunal included:
  - compensation in the amount of three years’ salary at highest level of Grade A-11;
  - administrative leave plus 30 months terminal leave;
  - separation lump sum in the amount of 22_ months salary;
  - repatriation/separation benefits;
  - outplacement package, including university-level courses; and
  - legal costs.

### Procedural and methodological challenges considered by the Tribunal
- Composition and qualifications of the review team:
  - Tribunal found external and internal team members’ qualifications met DRE guidance requirements and that no evidence showed improper influence or lack of role performance.
  - Applicant’s request for a replacement consultant was denied reasonably; ADM directed the team to expand contacts to be interviewed.
- Alleged ADM influence or conflict of interest:
  - ADM Assistant Director served as a “contact” and liaised to ensure consistency among teams; Tribunal found his involvement was limited, appropriate, and not a conflict of interest.
- Methodology and scope of inquiry:
  - Tribunal recognized the DRE methodology emphasized flexibility and targeted investigation of specific incidents alleged by applicants.
  - Review team conducted interviews with “more than twenty individuals,” including most contacts from Applicant’s list after ADM intervention.
  - Tribunal found methodology consistent with DRE procedures and reasonable within the team’s discretion.
- Use of evidence and sustainability of findings:
  - Tribunal applied the standard that discretionary administrative conclusions must not be arbitrary or capricious and must be reasonably supported by evidence gathered by the DRE team.
  - Having found procedures fair and consistent, Tribunal assessed whether the Director of Administration’s ratification was reasonably supported by the evidence.

### Tribunal’s findings on specific allegations and remedies
- Overall conclusion:
  - The Tribunal concluded the findings and recommendation of the DRE team, and their ratification by the Director of Administration, were reasonably supported by the evidence and that there was no ground to overturn the DRE conclusion that Ms. “Z”’s Fund career was not adversely affected by discrimination.
- Specific findings sustained by the Tribunal:
  - Starting salary allegation: review team’s conclusion of insufficient evidence of a promised higher starting salary was not arbitrary or capricious.
  - Alleged probationary period upon transfer in 1982: evidence indicated “underfilling” applied broadly and Applicant’s underfilling lasted less than two months before an increase in grade—no discrimination found.
  - Job grading exercise: no evidence grading was influenced by gender, race, nationality or age; Applicant did not use available appeals procedure.
  - Long Term Career Assessment (LTCA) and career support: LTCA was not widely provided; Applicant did not demonstrate denial resulted from discrimination; record showed Applicant took courses and participated in 9 – 10 missions.
  - Alleged demotion in 1988 transfer: transfer was lateral; grade remained A6—no discrimination found.
  - Alleged mistreatment and racist remarks in post-1988 assignment: no corroboration that nationality, gender or age played a role; no discrimination found.
  - Non-selection for vacancies and career progression: DRE found no evidence discrimination affected non-selection for vacancies; Tribunal recalled structural difficulty in advancing from assistant grades and sustained DRE finding that non-advancement was not proof of discrimination.
  - Remuneration for multiple languages: DRE remedied inadequate compensation by awarding a 4.0 percent within-grade salary adjustment effective May 1, 1998; neither the review team nor Director concluded the inadequate remuneration was the result of discrimination.
- Applicant’s contention that forward-looking remedies promised in the DRE were not implemented was not raised in prerequisite administrative review, and the Tribunal found no merit in the suggestion that any specific remedy was denied.

### Allegation of gender pattern in DRE outcomes and Grievance Committee review
- Gender-pattern claim:
  - Applicant alleged the remedy in her case reflected gender bias in DRE outcomes.
  - The Consultants’ Report did not show men were remedied at twice the rate of female complainants; no other support emerged for such a gender pattern.
- Grievance Committee procedural allegations:
  - Applicant alleged the Grievance Committee’s proceedings lacked neutrality and due process.
  - Tribunal reiterated it is not an appellate body over the Grievance Committee; the Committee’s recommendations are not “administrative acts” under Article II of the Tribunal’s Statute.
  - The Tribunal may, however, weigh the Committee’s treatment of an applicant as evidence and may order document production, request information, or hold oral proceedings under its own powers if appropriate.
  - The Tribunal reviewed extensive Grievance Committee transcripts showing Applicant had active assistance of two counsel and opportunities to comment and question witnesses, and found no ground to discount the Committee’s record.

### Decision
- The Administrative Tribunal unanimously decided to deny Ms. “Z”’s Application.

*Administrative Tribunal of the International Monetary Fund, judgment text (Washington, D.C., December 30, 2005).*

### Introduction

### Introduction

### Case overview
- The Administrative Tribunal of the International Monetary Fund met on December 6 and 7, 2005, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought against the International Monetary Fund by Ms. “Z”, a staff member of the Fund.
- Applicant contested the decision of the former Director of Administration approving the conclusions of a review team constituted under the Discrimination Review Exercise (DRE).
- Applicant’s DRE contentions: discrimination on the basis of gender, ethnicity or national origin, and age, which she alleged prevented her from attaining a Fund career commensurate with her qualifications and experience.
- DRE outcome: the review concluded that Applicant had not been discriminated against in her career with the Fund, but found that Ms. “Z” had not been adequately compensated for her use of multiple language skills in her first Fund assignment and granted a within-grade salary adjustment.
- Before the Administrative Tribunal, Applicant renewed discrimination claims and alleged procedural defects in the DRE investigation and lack of due process by the Fund’s Grievance Committee.

### Procedural history and record
- Ms. “Z” filed an Application with the Administrative Tribunal on March 10, 2004.
- Registrar advised Applicant of deficiencies under Rule VII, para. 6; Applicant corrected deficiencies within fifteen days and the Application was considered filed on the original date.
- Application transmitted to Respondent on April 2, 2004; Respondent filed its Answer on May 14, 2004; Applicant submitted her Reply on June 16, 2004; Respondent’s Rejoinder filed on July 19, 2004.
- On July 29, 2005, pursuant to Rule XVII, para. 3, the Tribunal issued a Request for Information as to Applicant’s current employment status; the Fund replied on August 2, 2005.
- The Tribunal declined to hold oral proceedings, as neither party requested them and they were not necessary for disposition; the Tribunal considered the transcript of Grievance Committee hearings as part of the record.
- On February 11, 2005, Applicant submitted an additional memorandum (regarding merit salary increases since 1997) and it was treated as an Additional Pleading under Rule XI; the President granted inclusion of the February 11, 2005 memorandum in the record on February 25, 2005.
- Respondent submitted observations on March 14, 2005, urging the Tribunal to disregard the Additional Pleading as irrelevant to the contested May 29, 1998 decision and as untimely under GAO No. 31 and Article V, Section 1 of the Tribunal’s Statute.

### Admissibility principles applied
- The Tribunal reiterated the statutory exhaustion requirement of Article V, Section 1: an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review.
- Precedent (Ms. “W”, IMFAT Judgment No. 2005-2) established that post‑DRE allegations may be admissible when they are: a) closely linked with the challenge to the DRE decision itself; and b) have been given some measure of review in a procedure intended to give finality to longstanding claims.
- The Tribunal held that generalized or “continuing” discrimination claims arising after the conclusion of the DRE process are not admissible as part of a challenge to a DRE decision.
- Application to Ms. “Z”:
  - The February 11, 2005 Additional Pleading (merit increases beginning in 1997) was not “closely linked” to the contested DRE decision and had not been given some measure of review by the Grievance Committee; therefore the Tribunal will not consider claims relating to merit increases beginning in 1997.
  - The Tribunal will not review generalized allegations that Ms. “Z” experienced “continuing” discrimination or that participation in the DRE had a prejudicial effect on her post‑DRE career development.

### Factual background (career timeline and status)
- Employment start: Applicant began her career with the Fund on June 23, 1980 as a Secretary at Grade B (equivalent to A4) in “Department 1.”
- Education at hire: held a bachelor’s degree in languages; in 1982 attained a master’s degree in education and human development.
- Career movements and promotions:
  - 1982: transferred to “Department 2”; within two months promoted to Grade C (equivalent to Grade A5) as a Personnel Clerk; remained in that grade and position until 1986.
  - 1986: became a Secretary in “Department 3,” at Grade A5; during tenure in “Department 3,” promoted to Grade A6.
  - 1988: returned to “Department 2” as Personnel Assistant (later Human Resources Assistant) at Grade A6.
  - 1990: following a period of ill health, became a Grade 6 Administrative Assistant in “Department 4.”
  - 1992: transferred to “Department 5” as an Editorial Assistant; promoted in 1993 to Grade A7.
- Position abolishment and separation:
  - October 2004: Applicant’s position was abolished and separation procedures initiated pursuant to GAO No. 16, Section 13.
  - Separation terms: Ms. “Z” will receive the maximum 22_-month separation leave period, with retirement from the Fund on August 1, 2007.

### The Discrimination Review Exercise (DRE)
- Nature and scope:
  - The DRE was an exceptional, one-time inquiry into cases of alleged discrimination, initiated by the Fund for complaints brought 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:
  - The DRE followed studies undertaken by the Fund after the 1992 Survey of Staff Views to examine possible discrimination on statistical and qualitative bases.
  - In May 1994, the Working Group on the Status of [staff issues] informed ensuing actions that led to the DRE (contextual background summarized).

### Tribunal’s assessment limits and final scope of review
- The Tribunal underscored its limited scope in reviewing DRE cases: it may not reexamine underlying discrimination contentions as if those had been pursued through the steps required under GAO No. 31.
- For Ms. “Z”, the Tribunal will confine its review to the matters properly before it, excluding:
  - Claims concerning merit increases from 1997 onward as raised in the Additional Pleading;
  - Generalized or “continuing” discrimination claims arising after the DRE process; and
  - Allegations not given a measure of administrative review in the Grievance Committee proceedings.

*Source: Administrative Tribunal of the International Monetary Fund, Introduction (case filing and procedural background).*

### 13.02 Notice. A staff member separated under the provisions of

### 13.02 Notice; 13.03 Resettlement Benefits; 13.04 Payment from Separation Benefits Fund; Discrimination Review Exercise (DRE) and Case Material

### Separation, notice, and benefits
- Section 13.02: A staff member separated under the provisions of Section 13.01 shall be entitled to 60 calendar days’ notice.
- The Director of Administration may extend the notice period up to 120 calendar days to allow the staff member reasonable time to settle affairs.
- The Director of Administration may excuse a staff member from reporting for duty during part or all of the period of notice and place the staff member on administrative leave with pay during this period.
- Section 13.03: A staff member separated under the provisions of Section 13.01 shall be eligible for resettlement benefits; the minimum period of service requirement specified in General Administrative Order No. 8 (Relocation Benefits and Separation Grant) shall not apply in such a case.
- Section 13.04: A staff member separated under the provisions of Section 13.01 shall be granted a separation payment from the Separation Benefits Fund in accordance with the provisions of Section 4.06.

*Employment discrimination in the Fund is prohibited by Rule N-2 of the Rules and Regulations of the International Monetary Fund: “N-2. Subject to Rule N-1 above, the employment, classification, promotion and assignment of persons on the staff of the Fund shall be made without discriminating against any person because of sex, race, creed, or nationality. Adopted as N-1 September 25, 1946, amended June 22, 1979.”*

### Rationale for an ad hoc discrimination review and institutional steps
- The Managing Director and Advisory Group on Discrimination commissioned and issued several reports addressing discrimination, culminating in the recommendation to institute an alternative dispute resolution procedure to address alleged discrimination (Discrimination in the Fund, December 1995; Memoranda to staff, February 9, 1996, and July 26, 1996).
- The Managing Director noted the need to address cases where past discrimination may have adversely affected careers and suggested appointing an independent panel to examine cases confidentially.
- On August 28, 1996 the Director of Administration announced a framework for ad hoc review of individual alleged discrimination cases, including self-identification by staff who believed their careers were adversely affected.
- The January 13, 1997 Memorandum (“Procedures for Review of Individual Discrimination Cases”) established that reviews would be carried out by external consultants assisted by Fund staff, with consultants selected for expertise in discrimination, diversity, arbitration, and mediation.

### DRE methodology and procedural guarantees
- The Consultants’ Report: review teams comprised five review teams, each including one outside consultant and one Fund staff member; the five teams, the Fund’s Special Advisor on Diversity, and the Director of ADM formed a committee to ensure consistency.
- Individual review steps:
  - (1) an initial interview with the applicant;
  - (2) interviews with others having knowledge of the applicant’s Fund career (“contacts” limited to those authorized by applicants), including supervisors, subordinates, peers, and others;
  - (3) statistical analysis, where required;
  - (4) a feedback interview with the applicant.
- During the DRE, the teams conducted approximately 600 contact interviews.
- Interview conduct:
  - All initial interviews were conducted by both team members except where applicants requested private meetings with the outside consultant.
  - Many contact interviews were conducted by one team member; Fund team members interviewed some secondary contacts privately.
  - Where Fund staff’s findings were potentially determinative, the outside consultants conducted follow-up interviews with contacts.
  - Teams advised contacts to respect confidentiality and informed them that feedback would be given to applicants in aggregate form to preserve anonymity.
- Decision authority and remedial constraints:
  - Outside consultants made final determinations regarding the merit of claims and suggested remedial action.
  - Remedies were limited to prospective actions within the Fund’s existing personnel policies; limiting factors included: (1) promotion opportunities; (2) applicants’ current competitiveness for job openings; (3) budgetary constraints; (4) time-in-grade requirements; and (5) the promotion procedures of the review committees.

### DRE caseload and aggregate findings
- Number of cases reviewed: 70 cases.
- Alleged grounds reported (approximately):
  - 70 percent alleged discrimination primarily on grounds of race or nationality.
  - 20 percent alleged discrimination primarily on grounds of gender.
  - 10 percent alleged discrimination primarily on grounds of age or religion.
- Outcomes and characterization:
  - The DRE 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 for which recommendations were made.
  - The Consultants’ Report states that only in a “small number of cases” was there “clear evidence of discrimination,” noting the exercise was not designed to prove discrimination to a high legal standard and that many judgments were subjective and based on sketchy evidence, sometimes going back 20–25 years.
- Distribution of primary factors where unfair or uneven treatment was found:
  - 77 percent linked primarily to race/nationality.
  - 20 percent linked primarily to gender.
  - 3 percent linked primarily to age.
  - The Report notes age was often an important secondary factor limiting advancement later in careers initially hampered by nationality, race, and/or gender considerations.

### Remedies awarded and their incidence
- Promotion 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.
  - Among those 17 cases, some promotions occurred independently of ADM intervention, some with support from management or ADM, and some as a direct result of specific management and/or ADM decisions outside the normal internal market.
- Within-grade salary adjustments:
  - In another 15 of the 35 cases in which some indications of uneven or unfair treatment were identified, a within-grade-salary adjustment averaging 6.2 percent was the primary remedial action.
  - In many of the 32 cases in which a promotion and/or within-grade-salary adjustment was a primary outcome, staff members also received training, reassignments, coaching, and mentoring.
  - In three cases in which unfair or uneven treatment was identified, remedial action did not involve promotion or within-grade-salary adjustment but included career development support.
- Supportive actions in cases without findings of unfair treatment:
  - In 10 of the 32 cases in which no indication of unfair or uneven treatment was found, some form of supportive action (training or reassignment) nonetheless was being provided as an outcome of the review.

### Gender-disaggregated outcomes
- Cases reviewed by gender:
  - 37 men and 30 women were reviewed.
- Proportion with indications of unfair or uneven treatment:
  - 53 percent of the women had indications identified.
  - 49 percent of the men had indications identified.
- Promotion incidence:
  - The proportion of men and women for whom a promotion was an outcome was comparable (table indicates promotion was the primary remedy for 23 percent of women and for 27 percent of men).
- Within-grade adjustments by gender:
  - A larger proportion of women (27 percent) received within-grade salary adjustments than men (19 percent).
  - The average size of the within-grade adjustment was larger for women (6.6 percent) than men (5.7 percent).
  - The Report attributes this in part to relatively low starting salaries for women accounting for a number of the cases of unfair treatment identified.

### Application of the DRE to the case of Ms. “Z”
- Request and grounds:
  - Applicant requested review under the DRE on September 30, 1996, asserting her Fund career was adversely affected by “race and gender considerations.”
  - Applicant reported joining the institution in June 1980 and described a history of alleged adverse treatment intensifying while in “Department 2,” including health impacts from stressful work conditions beginning in 1990.
- DRE review process for Applicant:
  - The review team for Applicant comprised an outside consultant and an Administrative Officer from a Fund department.
  - The team held its initial meeting with Ms. “Z” on March 12, 1997.
- Applicant’s allegations submitted in writing to the review team included:
  - Initial salary set lower than that quoted at interview.
  - Being placed “on probation” upon transfer to “Department 2.”
  - Grading of her post in “Department 2” as a result of the Fund’s job grading exercise.
  - Return to “Department 2” following employment with “Department 3,” allegedly resulting in “demotion” rather than a promotion expected.
  - Mistreatment in the new unit of “Department 2,” including alleged exclusion from meetings and being subject to “racist remarks,” resulting in damage to her health.
  - Non-selection for vacancies to which she had applied.
- Applicant’s subjective assessment:
  - Applicant asserted that a male, or a European woman with a British accent, would not have been subjected to the same treatment, and stated she was treated respectfully in “Department 5” and did not consider herself discriminated against in her current position.
  - Applicant emphasized ongoing effects on salary and professional satisfaction despite improved personal priorities and health.

*Material summarized from the Fund’s memoranda, the Consultants’ Report on the Discrimination Review Exercise (DRE), and related internal communications and case material.*

### 34.      On September 26, 1997, Applicant forwarded to the external team member additional

### j2005-4 - 34. On September 26, 1997, Applicant forwarded to the external team member additional

### Background and timeline
- September 26, 1997: Applicant forwarded additional Annual Performance Reports to the external team member and urged the review team to contact individuals whose names she had earlier provided.
- October 14, 1997: Following a phone conversation with the external team member, Ms. “Z” requested that a new consultant be assigned to her case, alleging the external team member “seems to be overwhelmed and not attending to the details of my case” and asserting the consultant “had not contacted any of my witnesses” and would not disclose whom he had contacted.
- November 21, 1997: Director of Administration informed Applicant that review team members had agreed to interview a wider range of contacts and directed the team to continue its review.
- Three days after November 21, 1997: Applicant again sought a replacement review team; request was unsuccessful and the initial team completed its review.
- May 7, 1998: Review team held a final meeting with Ms. “Z” to report findings and recommendations.
- May 21, 1998: Director of Administration affirmed the review team’s conclusions and recommended remedial action.
- May 1, 1998: Effective date of the one-time salary adjustment recommended by the review team.
- May 29, 1998: Decision of the Director of Administration that is contested in the Administrative Tribunal.
- November 2, 1998: Applicant sought administrative review by the Director of Administration, expanding on her allegations beyond language remuneration.
- November 16, 1998: Director of Administration confirmed the May 29, 1998 decision.
- January 15, 1999: Applicant filed her Grievance.
- After unsuccessful voluntary mediation, Grievance Committee considered the matter; Recommendation and Report issued September 15, 2003.
- March 10, 2004: Ms. “Z” filed her Application with the Administrative Tribunal.

### DRE review findings and remedial recommendation
- The DRE review team identified a single irregularity: Ms. [“Z”] did not receive credit for her bilingual skills (French and Spanish) when she joined the Fund in 1980.
- The review team determined that a salary adjustment in 1991 had been insufficient to compensate her consistent with Fund policies for extensive use of bilingual skills while assigned to “Department 1”.
- Recommendation: a 4.0 percent one-time salary adjustment effective May 1, 1998.
- Director of Administration approved the recommendations, stating:
  - “The remedial action approved in your case will include a 4.0 percent one-time salary adjustment within you current grade ... effective May 1, 1998.”
  - “The merit increase recommended by your department as of May 1, 1998, will be applied to this new salary.”
  - “[T]he fact that we are taking steps on your behalf as a result of this review does not constitute evidence of discrimination.”

### Applicant’s principal contentions (summary)
- Applicant alleges discrimination on the basis of gender, ethnicity or national origin, and age, preventing a Fund career commensurate with her qualifications and experience.
- Procedural fairness claims about the DRE review:
  - An incompetent review team was arbitrarily assigned and the defect was not remedied.
  - Administration Department and its Assistant Director improperly influenced the review (conflict of interest).
  - The review team failed to interview important witnesses while interviewing irrelevant staff.
  - The DRE process itself discriminated and disproportionately benefited male complainants.
  - Participation in the DRE prejudiced Applicant’s job satisfaction and prospects.
- Specific alleged incidents of discrimination across Applicant’s career (as asserted by Applicant):
  - Starting salary set lower than quoted at interviews.
  - Placement “on probation” after transferring to a new Division.
  - Unfair grading from the 1985 job grading exercise.
  - Denial of a requested Long Term Career Assessment and lack of career development support.
  - “Practical demotion” upon transfer to a new work unit.
  - Mistreatment, racist remarks, and lack of support from supervisors in the new unit, causing health problems and ending career ambitions.
  - Denial of career advancement: not selected for some twenty vacancies applied for.
  - Until the DRE outcome, not remunerated for consistent use of multiple languages on the job despite requesting the language premium.
- Allegation that the Grievance Committee failed to conduct a neutral, professional review in accordance with due process.
- Relief sought by Applicant:
  - compensation in the amount of three years’ salary at highest level of Grade A-11;
  - administrative leave plus 30 months terminal leave;
  - separation lump sum in the amount of 22_ months salary;
  - repatriation/separation benefits;
  - outplacement package, including university-level courses; and
  - legal costs.

### Respondent’s principal contentions (summary)
- The only decision properly before the Administrative Tribunal is the Director of Administration’s decision adopting the DRE team’s findings and recommendations; Applicant has not shown this decision was arbitrary, capricious, discriminatory, or procedurally defective.
- Procedures followed in the DRE review were consistent with established DRE procedures and prior Tribunal decisions.
- The Fund properly exercised discretion in appointing DRE review team members; team members were well qualified.
- The DRE team properly selected relevant witnesses to interview.
- No conflict of interest or improper influence by the Administration Department or its Assistant Director affected the DRE review.
- The DRE found no evidence of discrimination in Applicant’s case; each specific allegation was examined and found unsubstantiated, except for the language-credit irregularity remedied by the salary adjustment.
  - Sub-findings noted by Respondent (each found unsubstantiated by the DRE team): starting salary impropriety; discriminatory probationary period; gross under-grading in 1985; denial of Long Term Career Assessment or support; demotion upon transfer; discrimination by supervisor; discrimination in non-selections for vacancies; discriminatory denial of compensation for language skills (remedied by adjustment).
- The Administrative Tribunal is not an appellate body for Grievance Committee decisions.
- Applicant was afforded due process during Grievance Committee proceedings.

### Legal framework and standard of review applied by the Tribunal
- The Tribunal applies the framework developed in Ms. “Y” (No. 2), IMFAT Judgment No. 2002-2 (March 5, 2002), for review of DRE cases.
- Key legal points from precedent:
  - DRE was implemented as an alternative dispute resolution mechanism that did not confer new rights nor replicate GAO No. 31 formal grievance procedures.
  - Where mandatory time periods for invoking prior steps under GAO No. 31 have expired, the Tribunal’s review is limited to challenges to the fairness of the DRE process and to the Director of Administration’s decision affirming the DRE review team’s conclusions.
  - The Tribunal will undertake a limited review that may consider whether the Applicant’s career suffered discrimination insofar as it pertains to the Director of Administration’s adoption of the DRE conclusions, but will not conduct a de novo examination of the underlying discrimination claims.
  - The Tribunal reviews for abuse of discretion: whether discretionary decisions were arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.
  - The Tribunal will consider: a) whether DRE procedures applied were consistent with established DRE procedures and those applied in other cases; b) whether DRE conclusions and the Director of Administration’s ratification were reasonably supported by evidence; and c) whether the investigation was tainted by bias.

### Procedural issues the Tribunal will consider in this case
- Composition of the review team and adequacy of their qualifications.
- Alleged influence or conflict of interest involving the Administration Department and its Assistant Director.
- Methodology applied by the DRE review team in investigating Applicant’s claims, including scope of witnesses interviewed and documentary review.
- Whether the DRE proceedings as applied to Applicant were consistent with procedural fairness and with the DRE’s established procedures, and whether any alleged defects warrant overturning the Director of Administration’s decision.

*Source: Administrative proceeding material and Tribunal documentation of the International Monetary Fund and the Administrative Tribunal.*

### 54.       It is also noted that Applicant challenges features of the DRE process, for example,

### j2005-4 - 54. It is also noted that Applicant challenges features of the DRE process, for example,

### Overview
- The Administrative Tribunal reviewed Applicant’s challenges to the Discrimination Review Exercise (DRE) process and whether the procedures and findings in Applicant’s individual DRE review were fair, consistent with DRE procedures, and reasonably supported by evidence.
- The Tribunal noted prior rulings upholding the DRE’s general contours as a proper exercise of the Fund’s discretionary authority (see Ms. “Y” (No. 2), para. 49).
- The Tribunal observed that guidelines for the DRE were issued to staff and provided a basis for assessing fairness and consistency in individual cases (see Ms. “Y” (No. 2), paras. 55-62; Ms. “W”, paras. 70-90).

### Composition of the DRE review team
- Applicant’s claims:
  - Alleged that both review team members assigned to her case were unqualified and that an incompetent team was arbitrarily assigned.
  - Alleged that the external team member relied heavily upon the Fund team member and was “directed” by the Assistant ADM Director.
- Respondent’s position: Denied Applicant’s charges.
- Tribunal findings:
  - The external team member’s qualifications met those prescribed in the Memorandum to Staff of January 13, 1997, which required “...a mixture of backgrounds with expertise covering discrimination, diversity, arbitration and mediation.”
  - The internal Fund team member’s qualifications—seasoned staff with human resource policy experience and coursework in the field—were likewise consistent with DRE expectations.
  - No evidence showed that team members failed to play their prescribed roles. The Memorandum provided: “The review of individual cases will be carried out by external consultants [footnote omitted] assisted by a small number of Fund staff from both within and outside the Administration Department.”
  - The Fund team member described her role as “... to support [the external team member], it was more of a supporting role. I knew the Fund ...” and characterized the external member as “... the expert in discrimination...” and the principal author of the team’s report.
  - Applicant produced no evidence that the team assignment reflected discriminatory treatment (e.g., a claim that senior staff would not have received the same team).
  - The denial of Applicant’s request for a replacement review team was reasonably taken; ADM directed the team to expand the range of contacts to be interviewed.
  - Conclusion: No evidence that qualifications were lacking or that the external member’s role was improperly influenced by Fund officials; the working relationship and interactions with ADM were consistent with DRE procedures.

### Influence of the Administration Department and its Assistant Director
- Applicant’s claims:
  - Alleged inappropriate role and conflict of interest by the Administration Department (ADM) and its Assistant Director, asserting they “... created the problems to begin with” and could not “assess objectively the flaws in the system to bring a solution.”
  - Alleged that the ADM Assistant Director was “connected with, if not responsible for” actions “blocking” her career in “Department 2” and that he “influence[d] ... the direction taken by the team.”
  - In Grievance Committee testimony, Applicant described the official as “... very powerful and he is one of the factors involved in blocking people like me at the professional levels. ...”
- Evidence and testimony:
  - External team member testified: “QDid you reach those conclusions or those findings independently? AThat is correct. QDid you confer with [the Assistant Director of ADM] or [the ADM Director] as to what kind of recommendation you would make in Ms. [“Z”]’s case? ANo, we did not. QDid you confer with anyone else, apart from [the Fund team member]? AIt was [the Fund team member] and myself.”
  - The ADM Assistant Director served as a “contact” in the investigation; his involvement in alleged discriminatory events was “attenuated at most.”
  - The ADM Assistant Director assisted the Director of Administration in coordinating the overall review and served as “... sort of a liaison between the five teams to help ensure some consistency of approach in the way they went about the reviews....” The five review teams, the Director of Administration and the Diversity Advisor met periodically to maintain consistency.
- Tribunal findings:
  - The ADM Assistant Director’s role in Applicant’s DRE review was limited and consistent with his role in other DRE cases.
  - The Tribunal found no conflict of interest; ADM and its Assistant Director intervened to address Applicant’s complaint about the conduct of the review by directing the team to widen the scope of contacts interviewed.
  - Procedures followed in Applicant’s case were consistent with those of other teams and were reasonable; ADM’s involvement was appropriate to assure consistency with DRE procedures.

### Methodology applied by the DRE review team in Applicant’s case
- Applicant’s methodological complaints:
  - The review team did not consider Fund studies such as those of the Working Group on the Status of Women and the Report of the Chairman of the Fund’s Advisory Group on Discrimination “should have been considered by the review team.”
  - The team “... did not look at real comparators, i.e. men with comparable qualifications and experience ...” and interviewed staff not relevant while omitting important witnesses.
  - Applicant argued discrimination was “not related to just one event or one period,” criticizing the team’s focus on specific incidents.
- Team approach and testimony:
  - External team member viewed discrimination as “a pattern of events over time,” but stated limitations: “I can’t investigate the whole thing....” and “...we zeroed in on specific cases, situations of discrimination, and tried to address those. We didn’t take it into a broader holistic gestalt of what was going on.”
  - The Tribunal contrasted Applicant’s case with Ms. “W”, where the review team proceeded from a “rebuttable presumption” of discrimination due to absence of specific instances proffered by that applicant.
  - The external team member had familiarized himself with internal Fund studies as background material.
- Tribunal findings on methodology:
  - The DRE procedures’ “hallmark” was flexibility; the Memorandum of August 28, 1996, stated: “[t]he way in which individual cases will be considered will depend very much on the nature of the circumstances that have given rise to the claim of discrimination.”
  - Applicant brought to the team a series of incidents she viewed as evidencing discrimination; the team investigated those specific claims by interviewing relevant contacts and reviewing documentation, consistent with the approach in Ms. “Y”.
  - The Tribunal recalled that reliance on statistics alone was rejected in Ms. “W” and that qualitative as well as statistical factors were properly part of DRE reviews (see Ms. “W”, para. 21 and related decisions).
  - Regarding witness selection, the team interviewed “more than twenty individuals.” Applicant acknowledged that, following ADM’s intervention, these included most contacts on her original list. The team applied a reasoned approach by reviewing Applicant’s proposed contact list with her and assessing each individual’s potential relevancy.
  - Conclusion: The methodology applied was consistent with DRE procedures, reasonable, and within the discretion of review teams.

### Sustainability of the findings and conclusions of the DRE review of Applicant’s case
- Procedural baseline:
  - In Ms. “Y” (No. 2), para. 63, the Tribunal held that discretionary administrative conclusions must not be arbitrary or capricious and “... must satisfy itself that the contested decision is reasonably supported by evidence gathered by the DRE team.” (See Ms. “Y” (No. 2), para. 66.)
- Applicant’s challenge:
  - Applicant disputed the principal DRE conclusion that her Fund career was not adversely affected by discrimination.
  - The DRE recommendation (as ratified by the Director of Administration in her decision of May 29, 1998) concluded non-discrimination but recommended a one-time salary adjustment to remedy inadequate compensation for use of multiple language skills in “Department 1.”
- Tribunal implication:
  - Having found the DRE procedures applied to Applicant’s case to be fair, regular, and consistent with DRE rules and practice, the Tribunal proceeded to assess whether the contested decision was reasonably supported by the evidence gathered by the DRE team.

*Administrative Tribunal judgment excerpt.*

### 79.      Applicant maintains that the conclusion of the DRE review that Applicant’s Fund

### Applicant maintains that the conclusion of the DRE review that Applicant’s Fund career was not adversely affected by discrimination cannot be sustained

### Overview of DRE review and Tribunal conclusion
- The DRE review investigated whether Ms. “Z” had been discriminated against based on “nationality, race, gender or age.”
- Ms. “Z” described “race” as national origin and region, asserting disadvantage from “my looks, my accent, ... I don’t have a British accent” and not fitting “a particular profile that is favored in the Fund.”
- The Tribunal reviewed the review team’s report and Grievance Committee testimony and concluded that the findings and recommendation of the DRE team, and their ratification by the Director of Administration, were reasonably supported by the evidence.
- The Tribunal held that there was no ground for questioning the DRE conclusion that Ms. “Z”’s Fund career was not adversely affected by discrimination.

### Starting salary
- Applicant alleged starting salary in 1980 was set lower than quoted at interview.
- Review team examined entry level salaries for candidates hired in the same time period for similar positions and found no evidence of discrimination.
- Tribunal found the review team’s conclusion that there was insufficient evidence of a promised higher starting salary to be not arbitrary or capricious.

### Alleged probationary period upon transfer to “Department 2” (1982)
- Applicant alleged she was placed “on probation” upon transferring to “Department 2” in 1982.
- Review team concluded the term “probation” was sometimes used loosely to refer to “underfilling” (appointing at a grade lower than advertised until seasoned).
- Evidence indicated Applicant experienced “underfilling” when moving into a new Department and career stream in 1982, a practice applied “...across the board, to men and women equally, and to staff at the B levels, as to professional staff as to assistant level staff.”
- Applicant’s “underfilling” period lasted for less than two months after supervisor indicated her performance warranted an increase in grade level.
- Tribunal sustained the DRE finding that there was no discrimination associated with the 1982 transfer.

### Job grading exercise (mid-1980s)
- Applicant contended she was not fairly graded as a result of the job grading exercise.
- Grievance Committee testimony showed widespread dissatisfaction with the exercise, prompting a special appeals procedure which Applicant did not use.
- No evidence that Applicant was adversely affected by the exercise or that grading was influenced by gender, race, nationality or age.
- Tribunal found no ground to conclude discrimination resulted from the job grading exercise.

### Long Term Career Assessment (LTCA) and career development support
- Applicant alleged denial of a requested LTCA and lack of support for career development.
- It is undisputed Applicant did not receive an LTCA; the LTCA was not given to many staff and ultimately was discontinued.
- Administration Department officials testified that the LTCA did not correlate with career advancement.
- Applicant did not demonstrate the lack of an LTCA was the result of discrimination or that it adversely affected her career progression.
- Applicant conceded she progressed some on her own initiative but maintained she lacked support “...as people with British accents do....”
- Record showed Applicant took numerous courses at Fund expense and participated in 9 – 10 missions; supervisors testified she was perceived as able and ambitious and given opportunities for career growth.
- Tribunal sustained that Applicant did not experience discrimination regarding career development support.

### Alleged “demotion” on transfer to “Department 2” in 1988
- Applicant alleged she was “practically demoted” upon transfer in 1988 from “Department 3” to “Department 2.”
- DRE investigation found the transfer was lateral; no evidence of any promise of an increase in grade or title.
- Personnel record confirmed Applicant’s grade was A6 at the time of transfer and remained A6 thereafter.
- Tribunal sustained the DRE finding that no discrimination occurred in connection with the 1988 transfer.

### Alleged discriminatory treatment in new work unit (post-1988)
- Applicant alleged “mistreatment, racist remarks, and above all, lack of support from supervisors,” resulting in health problems and an end to career ambitions.
- Applicant had full opportunity to present her account to the external review team and the Grievance Committee.
- Allegations included being made to feel unwelcome as a senior assistant and receiving less support than two other assistants; also alleged discriminatory remarks about speech and schooling.
- No corroboration emerged that nationality, gender or age played a role; one co-worker noted the supervisor was “not an easy person to deal with,” but no indication of discrimination.
- Tribunal sustained the DRE conclusion that the final assignment in “Department 2” was not affected by discrimination.

### Non-selection for vacancies and career progression
- Applicant contended non-selection for some twenty vacancies and failure to attain a career commensurate with qualifications.
- DRE review found no evidence that discrimination affected Applicant’s non-selection for vacancies aimed at advancing to professional levels.
- Testimony noted difficulty moving from support staff to paraprofessional and professional grades; “A7 is a career ending grade for a large number of assistants in the Fund.”
- Tribunal recalled that non-advancement is not proof of discrimination and concluded the DRE reasonably found no adverse effect from discrimination on Ms. “Z”’s career progression from A4 to A7.

### Remuneration for use of multiple language skills
- Applicant alleged inadequate remuneration for consistent use of multiple languages on the job.
- As an outcome of the DRE, Applicant was granted a within-grade salary adjustment of 4.0 percent to compensate for regular use of multiple language skills in her first Fund assignment.
- Neither the review team nor the Director of Administration concluded the inadequate remuneration was the result of discrimination.

### Remedy and Director of Administration’s statement (May 29, 1998)
- Applicant did not dispute the adequacy or implementation of the 4.0 percent within-grade salary adjustment.
- Applicant alleged there were “no forward-looking remedies as promised in the DRE,” citing the Director of Administration’s May 29, 1998 letter quoting an earlier staff note that reviews “will not be an end in itself, but just the beginning of a process for identifying opportunities.”
- Tribunal found no merit to the suggestion that Applicant was denied implementation of any DRE remedy; the quoted language reiterated the January 13, 1997 Memorandum to Staff and did not specify a remedy for Ms. “Z.”
- The contention regarding forward-looking remedies was not raised or considered in administrative review procedures prerequisite to filing the Application.

*Administrative Tribunal decision (paras. 79–114).*

### 115.      Finally, Applicant asserts that the remedy in her case reflected a pattern of gender

### j2005-4 - 115.

### Findings on alleged gender pattern in DRE outcomes
- Applicant asserted that the remedy in her case reflected a pattern of gender discrimination in the outcome of the DRE exercise.
- The Consultants’ Report prepared at the conclusion of the DRE exercise did not show that men were remedied at twice the rate of female complainants, see supra para. 30.
- No other support emerged for the contention that DRE outcomes reflected such a gender pattern.
- The Tribunal cited Ms. “W”, para. 28: “...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.” (Ms. “W” denied request for production of documents.)

### Tribunal conclusion on remedy for Applicant
- The Fund, having reasonably found pursuant to the procedures afforded by the DRE that:
  - Applicant’s career was not adversely affected by discrimination, and
  - Applicant had not been adequately compensated for use of language skills in her first Fund assignment,
  made a sustainable decision in the reasonable exercise of its managerial discretion to grant Applicant the remedy of a one-time, within-grade salary increase but no other relief.

### Procedural allegations regarding Grievance Committee review
- Applicant contended the Grievance Committee’s proceedings were not conducted in a “neutral and professional manner” or in accordance with due process.
- The Fund responded that the Administrative Tribunal does not serve as an appellate body with respect to the Grievance Committee’s decisions and that Applicant was afforded due process.

### Legal relationship: Administrative Tribunal and Grievance Committee
- The Tribunal reiterated its prior holding in Mr. M. D’Aoust, IMFAT Judgment No. 1996-1 (April 2, 1996):
  - The Tribunal’s competence is limited to judging the legality of administrative acts as defined in the Tribunal’s Statute.
  - The Grievance Committee’s basic function is to hear cases within its jurisdiction and make recommendations to the Managing Director (GAO No. 31, Section I).
  - Section 7.09 of GAO No. 31 assigns final decision-making authority to the Managing Director or designee; therefore, the Grievance Committee’s recommendations do not constitute “administrative acts” within Article II, Sections 1.a. and 2.a. of the Statute.
  - The Tribunal is not an appellate body from the Grievance Committee but may take account of the treatment of an applicant before, during and after recourse to the Committee and may weigh the Committee’s record as evidence.

### Admissibility of evidence and document production
- The Tribunal concluded that the Grievance Committee’s decisions as to admissibility of evidence and production of documents are not subject to review by the Administrative Tribunal because they are not “administrative acts” within the contemplation of Article II of the Tribunal’s Statute.
- Such decisions rest within the authority granted to the Grievance Committee under GAO No. 31:
  - GAO No. 31, Section 7.06.3: “The Committee shall permit the introduction of all evidence it deems helpful in reaching its findings and recommendation.”
  - GAO No. 31, Section 7.06.4: “Upon the request of a party and with good cause shown, the Committee may, in its sound discretion, instruct the other party to provide to the Committee and to the opposing party documentary or other evidence.”

### Tribunal’s remedial and evidentiary powers
- Because the Tribunal makes findings of fact as well as holdings of law (D’Aoust, para. 17), any lapse in the Grievance Committee’s evidentiary record may be rectified for the Tribunal’s consideration by:
  - Ordering the production of documents pursuant to Article X of its Statute, and Rules XVII and XIII of its Rules of Procedure;
  - Requesting information; and
  - Holding oral proceedings.
- The Tribunal noted that Ms. “Z” had not made such requests in the Administrative Tribunal.

### Assessment of Grievance Committee record in Ms. “Z”’s case
- The Tribunal reviewed the transcripts of the extensive Grievance Committee proceedings in which Applicant had:
  - The active assistance of two counsel, and
  - The opportunity to comment and pose questions to witnesses.
- The Tribunal found no ground in the Grievance Committee’s record to discount its weight in the Tribunal’s weighing of the evidence.

### Decision
- FOR THESE REASONS
- The Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Application of Ms. “Z” is denied.

- Signatories:
  - Stephen M. Schwebel, President
  - Nisuke Ando, Associate Judge
  - Michel Gentot, Associate Judge
  - Celia Goldman, Registrar
- Washington, D.C.
- December 30, 2005

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_Source: https://www.imf.org/-/media/files/imfat/j2005-4.pdf_