## Administrative Tribunal judgment: Application of Ms. Vivian Shinberg (j2007-2) ## Source details **Canonical URL:** [Administrative Tribunal judgment: Application of Ms. Vivian Shinberg (j2007-2)](https://www.imf.org/-/media/files/imfat/j2007-2.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2007-2.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2007-2.pdf.json) --- ### Case overview and issues raised - Event: Administrative Tribunal of the International Monetary Fund met January 22, 23 and 24, 2007 (Judges Stephen M. Schwebel, Nisuke Ando, Michel Gentot). - Applicant: Ms. Vivian Shinberg, staff member assigned to the Secretarial Support Group (“SSG”). - Core claims by Applicant: - Fund policies on grading and promotion effectively preclude promotion beyond Grade A5 for SSG staff. - Medical condition from work-related injuries restricted ability to obtain positions outside SSG. - Application of policies to her case was arbitrary, capricious, discriminatory on the basis of work-related injuries, inconsistent with promotion criteria, and an abuse of discretion for failing to transfer her out of SSG. - Respondent (International Monetary Fund) contentions: - No “non-promotion policy” for SSG; general promotion and classification policies for all staff apply. - Staff Assistant positions in SSG are properly classified at Grades A4 and A5; no promotion opportunities within SSG once Grade A5 attained. - Applicant’s injuries did not entitle her to exceptional treatment; the Fund offered temporary assignments and opportunities outside SSG which Applicant declined. ### Procedural history - Key dates: - August 23, 2005: Application filed with the Administrative Tribunal. - September 6, 2005: Application transmitted to Respondent. - October 21, 2005: Respondent filed its Answer; Answer transmitted to Applicant on November 9, 2005 after correction. - December 14, 2005: Applicant Reply filed. - January 13, 2006: Respondent Rejoinder filed. - November 9, 2005: Tribunal denied Applicant’s request for production of documents (Rule XVII, para. 1). - Tribunal declined Applicant’s request for oral proceedings under Amended Rule XIII. - March 5, 2007: Tribunal rendered Decision denying the Application. ### Employment history and SSG placement - Employment chronology and grades: - 1976: Began employment as clerk/typist at Grade A (equivalent to current Grade A2); title changed to Secretary. - 1977: Promoted to Grade B (equivalent to current Grade A4). - 1979: Job title changed to Bilingual Secretary. - January 1986: Grade changed to A5 following Fund-wide Job Grading Exercise. - Remained at Grade A5 until separation leave in 2006. - Work-related injuries and SSG assignment: - May 1987: Initial work-related injury (file cabinet incident); received Workers’ Compensation benefits. - Assigned to SSG to accommodate medical restrictions, including part-time work requirement. - From July 1987 until February 1988 worked on a part-time basis in SSG. - August 1997: Second work-related injury (slip and fall); received Workers’ Compensation benefits. - Placed on separation leave beginning August 1, 2006, receiving the maximum 22.5 months of separation leave and bridged to a Fund pension. ### Medical history and functional limitations - 1987: Initial injury. - Applicant’s own report (1989 APR): medical condition “continues to restrict my ability to put in a normal 40-hour work week.” - 1990: Applicant reported “a very bad recurrence of back problems,” missing work for doctors’ appointments and therapy. - 1994–May 1997: Worked part-time; no indication this was dictated by restrictions or dissatisfaction with SSG. - May 1997: Returned to full-time work in SSG. - September 30, 1999 (HSD opinion): Applicant “fit for duty to work in a part-time position until further notice” and would “benefit from a stable work environment.” - 2001 Workers’ Compensation Claim Administrator: sustained “myofascial pain syndrome associated with low back pain ... rendered her capable of working only on a regular part-time basis.” - November 3, 2003 Medical Panel (Consensus Opinion): requires lifting restriction of 10 pounds; sitting duration of one hour with necessity to get up and stretch every hour; capable of working only a half-time schedule; could only work five half days in a “stable environment” (single supervisor, single location, single performance evaluator). ### Agreed approach and accommodations discussed in 1988 memorandum - Meeting objective: “understand Mrs. Shinberg’s current situation and ability to work, and explore ... possible options for future assignments.” - Applicant reported inability to sit for more than 2-3 hours in a row at the typewriter and needing ten minute break after one hour. - Applicant understood Fund would take “exceptional” steps for her “exceptional” situation, expected consideration of other job streams and any required training (e.g., proofreading). - Fund representatives: would look at positions Fund-wide at Applicant’s current level (A5); search to focus on jobs at current grade; training to increase versatility “consistent with Fund policies, but not a major retraining program.” - Agreed actions: explore Vacancy List assignments, “loan” Applicant from SSG to departments to assess suitability, hold follow-up meeting, Applicant to use Fund training opportunities. ### Grading, promotion rules, and Tribunal findings on classification - It is undisputed the SSG Assistant grade range does not extend beyond Grade A5; promotion beyond A5 within SSG requires selective promotion to an A6 position outside SSG. - Relevant regulatory provisions preserved exactly: - GAO No. 11, Rev. 4, Section 5.08: outlines promotion types including career-progression and selective promotion. - Staff Bulletin No. 03/3 (Promotion Policy for Non-Managerial A-Level Positions) (February 11, 2003, revised May 20, 2003) and GAO No. 11 establish career-progression to Grade A6 was not available in Applicant’s Staff Assistant position because the grade range extended only to Grade A5. - GAO No. 11, Section 6.04 preserved exactly: “6.04 Performance Impeded for Medical or Other Personal Reasons. If it is determined that, for medical or other personal reasons beyond his or her control, the staff member is unable to perform in full the duties of his or her position, and if no other vacant position is available at the same grade with duties that the staff member could reasonably be expected to perform, a staff member may, as an alternative to separation, be assigned to a vacant position at a lower grade where the staff member could be expected to perform the duties in full. ...” - GAO No. 11, Section 7.06.1: a staff member assigned to a lower grade “shall retain the higher grade, and his or her salary shall be administered in the salary range corresponding to that higher grade, for a period of two years.” - Job standards (date on job standard: October 20, 2005): - Grade A5 Staff Assistant: “applies intermediate level skills ... resolve nonroutine questions and problems ... works under limited supervision ... substitutes for higher-level Assistants.” - Grade A6 Administrative Assistant: “applies higher-level skills and additional institutional knowledge ... resolves most questions and problems ... works under minimal supervision ... may assist in orienting and training employees at lower grade levels ... carries out significant department-wide administrative responsibilities or projects.” - Tribunal factual assessment: - Applicant’s APRs recognized her as a “seasoned, experienced floater” with occasional higher-level responsibilities. - Higher-level assignments were limited and constrained by her medical condition; during the Joint Library long-term assignment failing health in 2001 and 2002 precluded duties for a significant portion. - Applicant did not consistently perform A6-level functions on an on-going basis. - Applicant never sought reclassification of her position during employment. - Tribunal conclusion on grading cap: - Applicant did not establish Respondent abused its discretion in maintaining or applying a grading policy that sets Grade A5 as the maximum for Assistants serving in SSG. ### Application of promotion policy and exception requests - GAO No. 11, Rev. 4, Section 5.08 preserved exactly: - “5.08.1. Career-Progression Promotion. When there is an established range of two or more grades for a position, a staff member may be promoted within that range, without competing with others, if he or she performs the duties and meets the qualifications and promotion requirements for the higher grade. - 5.08.2. Selective Promotion. A staff member will be promoted if he or she is selected for a new or vacant position at a higher grade for which an established procedure for the selection of candidates and the assessment of their suitability has been followed. ...” - Tribunal reasoning: - Applicant would have had to apply and be selected for a vacant higher-grade position via the Vacancy List process to obtain promotion to A6; Applicant does not allege she applied and was improperly denied selection. - Applicant requested exceptional treatment (retroactive promotion to Grade A6 from 1990) based on work-related injury, length of service, and limited mobility; Tribunal reviewed statutory text and precedent concerning exceptions (GAO No. 11, Rev. 4, Section 8.01). - Tribunal found no evidence Applicant requested, and was denied, an exception by management; precedent supports limited judicial review and deference to managerial discretion unless arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or violating fair procedures. - Tribunal conclusion on exceptions: - Fund did not abuse discretion in refusing to make an exception for Applicant to permit promotion to Grade A6. ### Accommodation efforts, vacancies, Applicant’s actions, and discrimination analysis - Fund obligations and context: - Fund’s Workers’ Compensation policy: GAO No. 20, Rev. 3 (November 1, 1982). - Medical separation governed by GAO No. 13, Rev. 5 (Annex I) and GAO No. 16, Rev. 5, Section 11. - Part-time employment governed by GAO No. 32 (May 2, 1988); as of January 2006 there were 23 staff members holding part-time positions out of a total staff of over 2,700. - GAO No. 11, Rev. 4, Section 5.01: staff assignment preferences “will be taken into account to the extent they can be reasonably accommodated” within criteria including education, training, experience, performance, and the Fund’s staffing and budgetary considerations. - Specific instances and evidence: - 1988: Administration Department proposed a lateral transfer to a permanent position which Applicant declined as “a clerical position, well below my status as bilingual secretary” and “undesirable.” - December 2002: HR officer transmitted vacancy announcement for a part-time Staff Assistant/Document Assistant (grade range A4/A5/A6) described as “stable environment and part-time work on alternate days”; Applicant did not apply and provided no explanation. - Applicant focused efforts on making the Joint Bank-Fund Library assignment permanent; health declined during that period. - Tribunal factual findings: - Fund provided temporary assignments from 1987 until separation leave in 2006 and made efforts to identify suitable positions; evidence indicates Applicant did not energetically pursue some opportunities identified. - Tribunal could not conclude the Fund was obliged to create same-grade positions where none existed. - Tribunal acknowledged Fund might have been more enterprising over almost 20 years, but on the facts could not conclude Ms. Shinberg’s rights were transgressed. - On discrimination: Applicant’s medical condition partially prevented performance; Tribunal did not find Fund failed to accommodate Applicant to the extent her “work-related capabilities” allowed; differential treatment was not found to be “unrelated to [Applicant’s] work-related capabilities, qualifications and experience” as defined in the Fund’s Discrimination Policy (July 3, 2003). ### Applicant’s requested relief and Tribunal decision - Applicant sought: - Promotion to Grade A6 retroactive to 1990 or another date the Tribunal deems fair. - Salary and pension contribution adjustments commensurate with any retroactive promotion. - Two years’ salary for moral damages. - Legal costs. - Respondent maintained no policy entitling injured staff to promotion or creation of permanent part-time positions; denied abuse of discretion and discrimination claims. - Tribunal decision: - The Application of Ms. Shinberg is denied. - Decision recorded March 5, 2007, Washington, D.C.; Judges Stephen M. Schwebel (President), Nisuke Ando (Associate Judge), Michel Gentot (Associate Judge); Celia Goldman, Registrar. *Administrative Tribunal of the International Monetary Fund — Judgment in the Application of Ms. Shinberg (Decision pronounced March 5, 2007).* ### Introduction ### Introduction ### Case overview - On January 22, 23 and 24, 2007, the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met to adjudge the case brought against the International Monetary Fund by Ms. Vivian Shinberg, a staff member of the Fund. - Applicant challenges the Fund’s policies on grading and promotion that effectively preclude promotion of staff beyond Grade A5 as long as they are serving in the Secretarial Support Group (“SSG”) and the application of these policies in her individual case. - Applicant was assigned to SSG following a work-related injury and contends: - her medical condition restricted her ability to obtain positions outside of SSG; - the Fund’s policies on grading and promotion precluded promotion while she remained in SSG; - the Fund’s decision to apply these policies to her case was arbitrary and capricious, impermissibly discriminated against her on the basis of her work-related injuries, and was inconsistent with the Fund’s promotion criteria; - the Fund abused its discretion by failing to transfer her out of SSG to a Fund department in which she could have attained a higher-graded position. - Respondent (the Fund) maintains: - staff serving in SSG are subject to the Fund’s policies governing promotion and job classification applicable to all staff; - Staff Assistant positions in SSG are properly classified at Grades A4 and A5, and therefore there are no promotion opportunities within SSG once a staff member has attained Grade A5; - Applicant’s work-related injuries did not entitle her to exceptional treatment; - the Fund made every effort to provide Applicant with suitable temporary assignments and on several occasions offered her opportunities to pursue positions outside of SSG, which she declined. ### Procedural history - Key dates and procedural steps: - August 23, 2005: Ms. Shinberg filed an Application with the Administrative Tribunal. - Registrar advised Applicant under Rule VII, para. 6 that the Application did not fulfill all requirements; Applicant was given fifteen days to correct deficiencies; Application deemed filed on the original date once corrected. - September 6, 2005: Application transmitted to Respondent. - September 12, 2005: Registrar circulated within the Fund a notice summarizing issues raised in the Application pursuant to Rule IV, para. (f). - October 21, 2005: Respondent filed its Answer. - Registrar advised Respondent under Rule VIII, para. 4 that the Answer did not fulfill all requirements; Respondent given fifteen days to correct; Answer transmitted to Applicant on November 9, 2005. - December 14, 2005: Applicant submitted her Reply. - January 13, 2006: Fund’s Rejoinder filed. ### Request for production of documents - Applicant’s request (as filed pursuant to Rule VII, para. 2(h) and Rule XVII): - “Any and all documents evidencing a policy against promoting Staff who are members of the SSG, including, but not limited to documents evidencing the date the policy was adopted, by which authority it was adopted, and any minutes of the meetings leading up to the alleged adoption of this policy.” - Respondent’s position: - No “non-promotion policy” exists applicable to SSG; applicable materials are the general policies governing promotion and job classification for all staff; these policies were attached to Respondent’s Answer. - Tribunal decision on production: - November 9, 2005: Tribunal denied Applicant’s request for production of documents on the ground that Applicant had not proffered evidence suggesting the Fund possessed additional responsive documents and had not shown denial of access as required by Rule XVII, para. 1. ### Request for oral proceedings - Applicant requested oral proceedings pursuant to Rule VII, para. 2(i) and Rule XIII on grounds that the Grievance Committee did not hold hearings on the merits and that testimony from Applicant and HRD staff would better develop the record. - Respondent opposed oral proceedings, arguing the challenge is essentially to the legality of the Fund’s promotion and grading policies, which are in the written record, and that no factual questions require oral testimony. - Governing standard: - Amended Rule XIII: “[o]ral proceedings shall be held if, on its own initiative or at the request of a party following an opportunity for the opposing party to present its views pursuant to Rules VII – X, the Tribunal deems such proceedings useful.” - Tribunal reasoning and precedent: - Tribunal noted that Applicant challenges both an alleged policy and its application to her circumstances; Respondent framed issues for review as: “(i) whether the Fund’s promotion and grading policies are invalid; (ii) whether those policies have been improperly applied to Applicant; and (iii) whether, as Applicant requests, she should be afforded treatment not available to other staff members and be promoted on an exceptional basis without regard to the Fund’s promotion policies.” - In Applicant v. International Monetary Fund, IMFAT Judgment No. 2006-1 (February 15, 2006) (Mr. “O”), Tribunal observed Grievance Committee proceedings offered opportunity to set out facts in dispute. - Applicant had not identified factual issues inadequately developed in written submissions. - Tribunal decision: - Tribunal decided not to hold oral hearings. ### Factual background and employment history - Employment chronology and grades: - 1976: Applicant began employment with the Fund as a clerk/typist at Grade A (equivalent to current Grade A2); later in 1976 title changed to Secretary. - 1977: Promoted to Grade B (equivalent to current Grade A4). - 1979: Job title changed to Bilingual Secretary in one of the Fund’s departments. - January 1986: Following the Fund-wide Job Grading Exercise, Applicant’s grade was changed to A5 in recognition of her level of experience. - Applicant remained at Grade A5 until beginning separation leave from the Fund for medical reasons in 2006. - Work-related injury and SSG assignment: - May 1987: Applicant suffered a work-related injury when a file cabinet fell and struck her back; she received Workers’ Compensation benefits, including coverage of medical expenses. - In order to accommodate medical restrictions, including a requirement of part-time work, Applicant was formally assigned to what later became known as the Secretarial Support Group (“SSG”), which provides temporary assistants or “floaters” to departments throughout the Fund. - From July 1987 until February 1988, Applicant worked on a part-time basis in SSG. - February 8, 1988 memorandum and agreed approach: - Meeting held with Applicant and Fund representatives to “understand Mrs. Shinberg’s current situation and ability to work, and explore ... possible options for future assignments.” - Applicant reported inability to sit for more than 2-3 hours in a row at the typewriter and needing a ten minute break after one hour of secretarial work at a desk. - Applicant understood the Fund would take “exceptional” steps to deal with her “exceptional” situation and expected the Fund would look at other job streams outside the secretarial one and provide any required training (e.g., proofreading positions). - Fund representatives indicated they would look at positions on a Fund-wide basis at Applicant’s current level (A5); an assignment would not preclude future possibility of a promotion; the search would focus on jobs at her current grade level; the Fund would provide training required to increase versatility at this level consistent with Fund policies, but not a major retraining program. - Agreed actions included exploring assignments via the Vacancy List, “loaning” Applicant from SSG to a Fund department to assess suitability for openings, holding another meeting to review progress, and Applicant availing herself of Fund training opportunities. - Annual Performance Reports (APRs) and subsequent history: - Applicant’s work history from 1987 injury through 2004, including evolution of medical condition, work restrictions, and responses by Applicant and the Fund, are chronicled in APRs included in the record. - 1988 APR noted Applicant’s “continuing need for absences from duty to attend medical therapy as a result of a job-related injury” and that the situation served neither the Fund’s nor Applicant’s best long-term interest; Administration Department proposed a lateral transfer to a permanent position, which Applicant declined, describing it as “a clerical position, well below my status as bilingual secretary” located in the basement with an allegedly unreasonable supervisor. - Applicant annotated the APR: “This was a clerical position, well below my status as bilingual secretary. This position was located in the basement of the building, plus the supervisor had the reputation of being quite unreasonable. After a while this assignment would have caused me, I believe, all kinds of problems, since at the time I had to go to therapy quite often. Anyway I had no intention of accepting such an undesirable position.” - Supervisor’s comment in 1988 APR: “Mrs. Shinberg wished to disagree with the implication in Section 4A above that she was suitable for the ... position and felt strongly that such a proposal would have done nothing to solve her problem.” - Applicant remained in SSG through the period described. *Administrative Tribunal of the International Monetary Fund (Judgment proceedings, January 22–24, 2007).* ### 21. For approximately three years following her 1987 injury, Applicant’s medical condition ### j2007-2 - 21. For approximately three years following her 1987 injury, Applicant’s medical condition ### Medical history and functional limitations - 1987: Applicant sustained an initial work-related injury. - For approximately three years following 1987, Applicant’s medical condition “continues to restrict my ability to put in a normal 40-hour work week.” (Applicant’s 1989 APR) - 1990: Applicant cited “a very bad recurrence of back problems,” requiring her to “miss quite a bit of work due to doctors’ appointments and therapy relating to my back.” - 1994–May 1997: Applicant worked part-time; no indication that this was dictated by medical restrictions or that Applicant was dissatisfied with SSG assignments. - May 1997: Applicant returned to full-time work in SSG. - August 1997: Applicant sustained a second work-related injury (slip and fall in the Fund cafeteria) and received Workers’ Compensation benefits. - Respondent’s account: since 1999 Applicant continued to receive full-time compensation through administrative leave with pay, accrued sick leave, extended sick leave, and Workers’ Compensation benefits; when no suitable assignments were available, Applicant was not required to report for work while continuing to receive full-time compensation and benefits. - September 30, 1999: HSD opinion — Applicant “fit for duty to work in a part-time position until further notice” and would “benefit from a stable work environment.” - 2001 Workers’ Compensation Claim Administrator conclusion: Applicant sustained “myofascial pain syndrome associated with low back pain as a result of her traumatic injuries of 5/28/87 and 8/7/97” and that this condition “has rendered her capable of working only on a regular part-time basis.” - November 3, 2003 Medical Panel (Consensus Opinion of the Medical Panel): Applicant requires a lifting restriction of 10 pounds and a sitting duration of one hour (with the necessity to get up and stretch every hour); she is capable of working only a half-time schedule; she could only work five half days in a “stable environment” (defined as being employed by one supervisor in one location and having her performance evaluated by a single supervisor). - 2006: Applicant placed on separation leave beginning August 1, 2006, receiving the maximum 22.5 months of separation leave based upon her years of service and bridged to a Fund pension. ### Employment assignments, evaluations, and accommodations - 1990: Title changed to Staff Assistant; grade remained A5. - 1991–1992: APRs reflect improved functioning; undertook two mission assignments; assignments included work in the Immediate Office of a Fund department; supervisors noted benefit from stability of longer assignments and “unusual degree of initiative and dedication” in complex, independent work. - November 1994–May 1997: Part-time status granted; supervisor noted part-time schedule “precluded her participation in longer assignments” but she remained busy in day-to-day assignments; Applicant expressed appreciation for part-time status and desire to continue. - 1996–1997: Six-month TAP assignment as Special Projects Assistant at Grade A5; applicant sought return to SSG on a full-time basis after TAP; supervisor advised SSG changing role “would not be conducive to part-time work on an indefinite basis.” - Late 1999: Returned to part-time status in SSG; January 2000 assignment in the Joint Bank-Fund Library described as a long-term basis opportunity; 1999 APR reflected Applicant’s confidence HRD would find a permanent part-time accommodation in 2000. - 2002: Library assignment ended, according to Respondent, for budgetary reasons; Applicant’s 2002 APR: “In 2002, Ms. Shinberg was only able to work a short period of time in the Joint Library.” - December 2002: HR officer transmitted a vacancy announcement for a part-time Staff Assistant/Document Assistant (grade range A4/A5/A6) described as “stable environment and part-time work on alternate days”; Applicant did not apply. - July 2004: After administrative leave beginning January 2003, Applicant accepted a TAP assignment as part-time Special Projects Assistant; April 2005 Applicant requested termination of this assignment; subsequently assigned to another department part-time until 2006 when assignment ended and medical separation proceeded. ### Administrative and medical-review processes - May 1999: Administrative leave with pay began while HSD sought fitness-for-duty evaluation. - October 1, 1999: Administrative leave with pay ended; HSD recommended part-time work in a stable environment; HRD advised Applicant to report to SSG on a part-time basis while a suitable part-time position was sought. - February 28, 2003: Fund initiated proceedings to separate Applicant on medical grounds pursuant to GAO No. 16, Rev. 5 (July 10, 1990), Section 11. - Applicant objected; medical panel review pursuant to GAO No. 13, Rev. 5, Annex I (June 15, 1989) was conducted. - November 3, 2003: Medical Panel issued consensus opinion confirming part-time capability with specified restrictions (see Medical history section). - July 2004: Medical separation proceedings suspended when Applicant accepted a part-time TAP assignment; proceedings resumed after assignment ended in 2006 leading to separation leave and pension bridging. ### Grievance and Tribunal actions - January 3, 2000: Applicant filed a Grievance and filed a revised Grievance on July 10, 2000, raising claims including “discrimination in [Applicant’s] past assignment.” - October 5, 2001: Fund filed Motion to Dismiss portion of Grievance challenging policies governing promotion and mobility for SSG staff for lack of jurisdiction. - October 26, 2001: Applicant filed Opposition asserting challenge to the application of policies in her individual case. - May 24, 2005: Grievance Committee hearing resulted in stipulation that Applicant may proceed directly to the Fund’s Tribunal, having agreed administrative remedies were exhausted with respect to Grievant’s career progression claim. - August 23, 2005: Applicant filed her Application with the Administrative Tribunal. ### Applicant’s principal contentions (summarized) - Fund policies on grading and promotion that effectively preclude promotion of staff in SSG beyond Grade A5 discriminate against injured staff. - Application of these policies to Applicant—assigned to SSG as a result of a work-related injury caused by the Fund’s negligence—is unfair, discriminatory, and inconsistent with the Fund’s promotion criteria. - Respondent should have made an exception to these policies given Applicant’s circumstances. - Respondent abused its discretion by failing to transfer Applicant out of SSG to afford promotion opportunity. - Respondent mismanaged Applicant’s career by denying promotion opportunities. *Source: Administrative Tribunal materials relating to Applicant’s employment, medical reviews, HRD actions, Grievance Committee proceedings, and Application filed with the Administrative Tribunal.* ### 6. Applicant seeks as relief: ### 6. Applicant seeks as relief: ### Applicant’s requested relief - Promotion to Grade A6 retroactive to 1990 or another date the Tribunal deems fair and appropriate. - Salary and pension contribution adjustments commensurate with any retroactive promotion. - Two years’ salary for moral damages. - Legal costs. ### Respondent’s principal contentions - There is no policy against promoting staff who serve in SSG; such staff are subject to the Fund’s general policies governing promotion and job classification. Staff Assistant positions in SSG are properly classified below Grade A6, and therefore there are no promotion opportunities within SSG once a Staff Assistant has attained Grade A5. - The Fund’s policies on the grading and promotion of Staff Assistants and their application to Applicant are a valid exercise of the Fund’s discretion. The Fund’s promotion policies have been applied to Applicant fairly and properly. - Applicant’s work-related injuries do not entitle her to exceptional treatment outside the parameters of the Fund’s promotion policy. - The Fund fulfilled its duty to provide injured staff, to the extent possible, the required work accommodations recommended by medical personnel, and made every effort to provide Applicant with suitable temporary assignments. The Fund either offered Applicant positions or brought to her attention vacancies outside of SSG, but Applicant refused to avail herself of these opportunities. Part-time assignments and positions within the Fund that would satisfy Applicant’s medical restrictions are very limited. - The record belies Applicant’s assertion that the Fund mismanaged her career. ### Consideration of the issues of the case - Central legal standard: managerial and administrative discretion of the Fund is subject only to limited review by the Tribunal and may be overturned only if shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. The rule of nondiscrimination imposes a substantive limit on discretionary authority. - The Fund’s Discrimination Policy (July 3, 2003) expressly encompasses discrimination on the ground of disability and defines discrimination to include differences in treatment that are not based on the Fund’s institutional needs and are unrelated to an employee’s work-related capabilities, qualifications, and experience, with adverse impact on career opportunities, compensation, or other terms and conditions of employment. - It is undisputed that application of the Fund’s policies on grading and promotion effectively precludes promotion of staff serving within SSG beyond Grade A5. - Under GAO No. 11, Rev. 4 (Grading of Positions, Assignment of Staff, and Salary Administration) (January 16, 2004), Section 5.08, a staff member may be promoted through: (a) career-progression promotion; (b) selective promotion; or (c) promotion resulting from reclassification of the position. - The grade range of Assistant positions in SSG does not extend beyond Grade A5 (with the limited exception of certain staff members who transfer into SSG from a higher-graded position), and there has been no reclassification of these positions during the relevant time period. Therefore, SSG staff at Grade A5 may attain promotion only by selective promotion to a position at a higher grade outside SSG. - The Tribunal will address separately: (1) the grading/classification of SSG positions; and (2) the Fund’s promotion policy as applied to Applicant. ### Grading of SSG positions - Classification and grading of posts is an exercise of discretionary authority, subject to judicial review only for irregularity; tribunals defer to technical assessments of job content unless the evaluation is tainted by irregularity. - GAO No. 11, Rev. 4 assigns authority to the Director of Human Resources, after consultation with the relevant Department Head, to grade A1-A15 positions and maintain a system for grading based on job content and qualifications. Heads of Departments are responsible for defining and documenting job content and maintaining consistency between defined job content and duties actually performed by staff. - Job standards: - Grade A5 Staff Assistant: “applies intermediate level skills and procedures appropriate within the assigned functional area. Duties and tasks require a good command of procedures, processes, and techniques applicable in the Fund, since the Assistant is required to resolve nonroutine questions and problems, referring the more complex issues to higher levels. The Assistant works under limited supervision from, and as necessary substitutes for, higher-level Assistants.” - Grade A6 Administrative Assistant: “applies higher-level skills and additional institutional knowledge to the position within the assigned functional area. Duties and tasks are frequently nonroutine. The Assistant resolves most questions and problems, and refers only the most complex issues to higher levels. The Assistant works under minimal supervision, and may assist in orienting and training employees at lower grade levels. In an immediate office, in addition to providing administrative and secretarial support to a senior staff member, the Assistant carries out significant department-wide administrative responsibilities or projects. In a division, the Assistant is responsible for the timely completion of the division’s secretarial and administrative work.” - (The date noted on the job standard submitted by Respondent in its pleadings before the Tribunal is October 20, 2005.) - Respondent’s rationale for SSG grading: - SSG was organized in 1980 to provide temporary administrative (“floater”) assistance to departments and Offices of Executive Directors, not intended to provide permanent career placement. SSG comprises regular staff transferred there for various reasons, former assistants to EDs who took staff positions following service in ED offices, and contractual employees recruited for up to two years with the objective of securing a permanent position in the Fund. - SSG members are encouraged to seek alternative positions through the vacancy process; ability to find a permanent position depends on availability of positions, individual proactivity, and performance record. - The grades assigned to SSG reflect HRD’s assessment of job content; an SSG assistant “simply does not regularly and continuously carry out” functions required at the A6 level. - Respondent asserts Applicant “has made no showing ... that she is carrying out on an on-going basis the functions of an A6 assistant ....” - Applicant’s counterarguments: - Applicant asserts the SSG rationale does not apply to her because she was placed in SSG after serving 10 years and remained there almost 20 years more. - Applicant asserts that during her assignment in the Joint Library she performed higher-level non-floater skills, used institutional knowledge, and worked with minimal supervision for nearly three years, and sometimes filled in for higher-graded positions. - Tribunal’s factual assessment: - Applicant’s Annual Performance Reports recognized her as a “seasoned, experienced floater who knows Fund procedures well” and noted successful performance in a variety of assignments, occasionally discharging responsibilities that “require[d] the ability to work independently and to manage complex tasks.” - Such higher-level assignments were limited and limited at least in part by Applicant’s medical condition, which appears to have grown more problematic over time; during her long-term assignment in the Joint Library, failing health, especially in 2001 and 2002, precluded her from performing duties for a significant portion of that assignment. - The Tribunal is not able to sustain that Applicant consistently carried out functions and responsibilities at the A6 level over the course of her service in SSG. - As far as the record reveals, Applicant never sought reclassification of her position during the course of her employment. *IMF Administrative Tribunal judgment material summarized by the Tribunal.* ### 52. In the view of the Tribunal, Applicant has not established that Respondent abused its ### In the view of the Tribunal, Applicant has not established that Respondent abused its ### Grading cap for Assistants in SSG - Tribunal finds Applicant has not established that Respondent abused its discretion in maintaining and applying a grading policy that sets Grade A5 as the maximum grade level for Assistants serving in SSG. - Applicant sought an exception to permit promotion to Grade A6; Tribunal addresses exceptional-treatment arguments at paras. 58–68. ### Application of the Fund’s promotion policy - Applicant contends Respondent “blindly” applied the Fund’s promotion policy, producing “an unfair and discriminatory result” and conflicting with the Fund’s official promotion criteria. - Respondent asserts it did not abuse discretion by: - Not offering a promotion within SSG where job content did not warrant it. - Not placing Applicant in a higher graded position other than through the normal competitive selection process. - Not being shown that Applicant regularly performed A6-level functions or was improperly denied selection for any vacancy to which she applied. - GAO No. 11, Rev. 4, Section 5.08 definitions preserved exactly: - “5.08.1. Career-Progression Promotion. When there is an established range of two or more grades for a position, a staff member may be promoted within that range, without competing with others, if he or she performs the duties and meets the qualifications and promotion requirements for the higher grade. - 5.08.2. Selective Promotion. A staff member will be promoted if he or she is selected for a new or vacant position at a higher grade for which an established procedure for the selection of candidates and the assessment of their suitability has been followed. ...” ### Eligibility, career-progression limits, and Applicant’s history - Applicant’s assignment to SSG followed an initial injury in 1987 and was an accommodation; Applicant does not allege discrimination or improper motive in that placement. - Applicant maintains she has been eligible for promotion as of 1990 under the Fund’s internal “Promotion Criteria” and seeks a promotion retroactive to 1990. - Staff Bulletin No. 03/3 (Promotion Policy for Non-Managerial A-Level Positions) (February 11, 2003, revised May 20, 2003) and GAO No. 11 establish that: - Career-progression promotion to Grade A6 was not available in Applicant’s Staff Assistant position because the grade range for that position extends only to Grade A5. - To be considered for promotion to another higher-grade position, Applicant would have had to apply and be selected for a vacant position through the Career Opportunities Vacancy List process; Applicant does not allege she applied and was improperly denied such a promotion. - Tribunal concludes the Fund did not abuse its discretion in applying its promotion policy to Applicant. ### Exceptional treatment: statutory text, precedent, and analysis - Applicant argues for an exception based on “compelling circumstances” tied to: - Alleged Fund negligence that led to initial placement and ongoing part-time schedule. - Length of service (after “almost thirty years of service” Applicant asserts ability to assume A6 responsibilities). - Respondent rejects negligence findings and asserts: - Work-related injuries do not entitle exceptional promotions; “an exceptional, personal promotion is not the appropriate compensation for a work-related injury.” - No Fund policy entitles staff to promotion or obligates creation of a permanent part-time position. - Exceptional treatment would cause inconsistent administration and run contrary to promotion rules focused on merit. - Tribunal reviews authority and precedent: - GAO No. 11, Rev. 4, Section 8.01: “The Director of Human Resources shall administer this Order .... When special and unusual circumstances exist that are not explicitly covered by this Order, the Director of Human Resources may authorize any necessary action that is in line with the purposes of this Order.” - Prior Tribunal decisions summarized: - Mr. “R”: Tribunal upheld denial of an exception where management’s considered decision was reasonable; managerial discretion is subject only to limited review. - Ms. “G”: Tribunal observed management’s discretion does not extend to granting exceptions that would run counter to essential objectives of a Fund policy. - WBAT precedent in Bernstein v. IBRD, WBAT Decision No. 309 (2004): Tribunal may review specific instances for arbitrariness or unreasonableness and may find unusual facts warrant review and relief where application of a rule produced inequitable results tied to protected circumstances. - Tribunal considers whether exceptions to grading/promotion would be consistent with the essential objectives of the Fund’s policies; notes Applicant did not show a request for, and denial of, an exception by management. ### Discrimination and neutrality concerns - Tribunal recognizes that a neutral policy may produce consequential differentiation between groups and that alleged discrimination can arise from such effects (citing Mr. “R”, para. 36). - Applicant claims application of grading and promotion rules produced an unfair and discriminatory result given her injuries and work limitations; Tribunal considers whether impermissible discrimination arose and whether an exception should have been drawn. ### Medical separation, accommodation, and related policy text - Respondent invokes medical separation policy arguments: - GAO No. 16, Rev. 5, Section 11 (“Separation for Medical Reasons”) and GAO No. 13, Rev. 5, Annex I (“Separation for Medical Disability”) (June 15, 1989) govern obligations when a staff member is unable to perform duties for medical reasons. - GAO No. 11, Section 6.04 preserved exactly: “6.04 Performance Impeded for Medical or Other Personal Reasons. If it is determined that, for medical or other personal reasons beyond his or her control, the staff member is unable to perform in full the duties of his or her position, and if no other vacant position is available at the same grade with duties that the staff member could reasonably be expected to perform, a staff member may, as an alternative to separation, be assigned to a vacant position at a lower grade where the staff member could be expected to perform the duties in full. ...” - GAO No. 11, Section 7.06.1: a staff member assigned to a lower grade “shall retain the higher grade, and his or her salary shall be administered in the salary range corresponding to that higher grade, for a period of two years.” - Tribunal notes these provisions do not obligate creation of a same-grade position where none exists; if no suitable position at the same or lower grade can be found (or is refused), the Fund’s obligation in the medical-separation context is deemed exhausted. - Tribunal distinguishes accommodation obligations under promotion/grading rules from the medical-separation framework. ### Tribunal’s factual findings and conclusions on exception and accommodation claims - Applicant repeatedly asserts Fund negligence caused initial placement and ongoing need for part-time schedule; Respondent counters coverage under workers’ compensation is not an admission of negligence. - Applicant did not show she regularly carried out A6-level functions while in SSG. - Applicant requests retroactive promotion largely based on limited career mobility from injuries, length of service, and performance rather than the functions of the position. - Tribunal recognizes the unusual facts: two work-related injuries and serving “almost two decades” without promotion. - Tribunal also notes limited transfer opportunities to departments offering promotion potential were apparently not seized by Applicant. - Tribunal concludes the Fund did not abuse its discretion in: - Failing to make an exception to its grading and promotion policies in favor of Applicant. - Failing to transfer Applicant out of SSG where no evidence shows a breach of internal law to accommodate an injured staff member beyond established policy channels. - Tribunal indicates Applicant’s claim of discrimination will be addressed more fully elsewhere in the record. *Tribunal decision from j2007-2 (IMF).* ### 70. Respondent acknowledges that “one of its primary duties to injured staff is to provide, to ### j2007-2 - 70. ### Background and procedural history - Applicant was assigned to SSG in 1987 following an initial work-related injury. - The Fund initiated proceedings to separate Applicant on medical grounds in 2003; those proceedings were suspended when a suitable assignment was identified in July 2004. - Applicant does not challenge the Fund’s decision in 2006 to separate her on medical grounds; the Tribunal therefore considered only the claim that the Fund failed to provide adequate opportunities for Applicant’s career advancement in light of her medical limitations. - The Administrative Tribunal of the International Monetary Fund rendered its Decision denying the Application on March 5, 2007. ### Fund policies and stated obligations - The Fund’s Workers’ Compensation policy provides staff members with benefits and compensation “... in the event of illness, accidental injury or death arising out of, and in the course of, their employment.” GAO No. 20, Rev. 3 (November 1, 1982) (Workers’ Compensation Policy). - GAO No. 13, Rev. 5 (Annex I, Sections 2.01.1 and 2.01.2) governs medical separation, applying only when a staff member is in sick leave status and “will not be able to return to duty in the foreseeable future” or when “... over a prolonged period the staff member has been prevented, for medical reasons, from performing the duties assigned to him in an acceptable manner.” - The Fund acknowledges a duty to provide injured staff “to the extent possible, the required work accommodations recommended by medical personnel,” but Respondent did not cite any pertinent internal regulation establishing that duty. - Part-time employment in the Fund is governed by GAO No. 32 (May 2, 1988); as of January 2006 there were 23 staff members holding part-time positions, out of a total staff of over 2,700. - GAO No. 11, Rev. 4, Section 5.01 provides that staff shall be given adequate opportunity to express assignment preferences and that such interests “will be taken into account to the extent they can be reasonably accommodated within the criteria of (i) [the staff member’s education, training, experience, performance, and other factors that may be relevant to the duties of the position] and (ii) [the overall interests, staffing, work requirements, and budgetary considerations of the Fund and of the department to which the staff member is assigned] ....” ### Factual findings on accommodations, vacancies, and Applicant’s actions - The Fund provided Applicant continued employment by assigning temporary assignments from 1987 until the beginning of her separation leave in 2006. - Respondent asserts that the Fund “has endeavored over the years to fully accommodate Applicant’s injuries and the limitations on her ability to perform her duties as a Staff Assistant” and that the Fund made “good faith and extensive efforts to identify suitable positions for her.” - Respondent further asserts that Applicant “refused to apply for or consider the few permanent part-time positions that arose.” - Specific instances cited by Respondent: - 1988: Administration Department proposed a lateral transfer to a permanent assignment which Applicant declined; Applicant’s 1988 APR records Applicant’s objection that “This was a clerical position, well below my status as bilingual secretary. This position was located in the basement of the building, plus the supervisor had the reputation of being quite unreasonable. After a while this assignment would have caused me, I believe, all kinds of problems, since at the time I had to go to therapy quite often. Anyway I had no intention of accepting such an undesirable position.” - December 2002: Human Resources Officer transmitted a vacancy announcement for a part-time Staff Assistant/Document Assistant within the Secretary’s Department, grade range A4/A5/A6, described as entailing “a stable environment and part-time work on alternate days”; Applicant did not apply and provided no explanation. - The vacancy announcement expressly stated obligations and personal qualities including: working extended hours during the ministerial and Annual Meetings; capacity to work well under pressure; willingness to respond to a variety of requests quickly and efficiently. - Applicant acknowledged encouragement to identify and apply for positions outside of SSG and to use Fund training opportunities; Applicant also undertook training and indicated in APRs a desire for a suitable, long-term part-time arrangement. - Applicant concentrated efforts on making permanent her assignment in the Bank-Fund Library; during the period she focused on the Library, her health and consequent ability for work appear to have declined. - Applicant asserted before the Tribunal that applying to identified opportunities was “an exercise in futility” and that attempts to apply for positions outside of SSG were “met with objection and hesitance with respect to Ms. Shinberg’s injury,” but Applicant did not substantiate these assertions in pleadings and identified no specific positions that were demonstrably suitable with proper accommodations. ### Tribunal analysis: duty to seek/create positions, discrimination, and career mismanagement - The Tribunal observed that SSG was not designed to provide permanent placement and that its changing role made it less conducive to providing the stable, part-time work arrangement Applicant’s medical condition required. - The Tribunal posed and addressed the question whether the Fund had a further obligation to seek a suitable part-time position for Applicant outside of SSG that would have offered a possibility of career-progression promotion, and whether the Fund’s efforts met such an obligation. - On the facts of the case the Tribunal concluded: - It did not find that the Fund was obliged to afford Ms. Shinberg opportunities to transfer to another department which had promotion possibilities beyond the opportunities that did arise and of which Ms. Shinberg was informed. - The evidence shows the Fund did make efforts to find positions for Ms. Shinberg in other departments and that Ms. Shinberg was not energetic in pursuing the particular positions identified. - It may be that the Fund could have been more enterprising over a span approaching 20 years in creating opportunities in other departments for a staff member with medical disabilities, but on these facts the Tribunal was unable to conclude that Ms. Shinberg’s rights were transgressed by the Fund’s not having taken greater efforts to create alternative assignment opportunities. - Regarding discrimination, the Fund’s Discrimination Policy defines discrimination as differences in treatment “not based on the Fund’s institutional needs” and “unrelated to an employee’s work-related capabilities, qualifications and experience,” which may include “disabilities or medical conditions that do not prevent the employee from performing her or his duties.” The Tribunal found: - Applicant’s medical condition, as assessed by Health Services, partially “prevent [her] from performing her duties.” - The Tribunal was not able to conclude that the Fund failed to accommodate Applicant to the extent her “work-related capabilities” allowed. - Accordingly, the Tribunal did not find that any differential treatment experienced by Ms. Shinberg was, as the Discrimination Policy phrases it, “unrelated to [Applicant’s] work-related capabilities, qualifications and experience.” - Regarding career mismanagement claims and relevant jurisprudence (Chhabra and Barnes), the Tribunal concluded that, while the Fund might have been more enterprising, it did not actionably mismanage Applicant’s career on the facts presented. ### Decision and outcome - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Application of Ms. Shinberg is denied. - Judgment and signatures recorded: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Celia Goldman, Registrar. - Location and date of Decision: Washington, D.C.; March 5, 2007. --- _Source: https://www.imf.org/-/media/files/imfat/j2007-2.pdf_