## j2007-4 - Introduction ## Source details **Canonical URL:** [j2007-4 - Introduction](https://www.imf.org/-/media/files/imfat/j2007-4.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2007-4.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2007-4.pdf.json) --- ### Case overview - The Administrative Tribunal of the International Monetary Fund met on May 22 and 23, 2007, to adjudge the case brought against the International Monetary Fund by Ms. “BB”. - Applicant (Ms. “BB”) contested: - her performance rating for 2002; - the percentage of her merit increase; - her lack of promotion to Grade A14; - alleged harassment and a hostile work environment by “Supervisor 1” that she says affected evaluations, career progression, and health; - the Fund’s disciplinary decision pursuant to GAO No. 33 for alleged improper use of confidential personnel information in pursuing her request for administrative review; - actions of the Fund’s Grievance Committee and Fund Management relating to the Grievance Committee’s review of her Grievance. - Respondent (the Fund) maintained: - it did not abuse its discretion regarding the performance rating, merit increase, or career progression decisions and that those decisions were reasonably supported by Applicant’s performance and not influenced by alleged harassment; - Applicant is not entitled to compensation for workplace harassment beyond the grant already made on the recommendation of the Grievance Committee; - the disciplinary action under GAO No. 33 against Ms. “BB” should be sustained; - certain acts challenged by Applicant relating to the review of her Grievance are outside the Tribunal’s jurisdiction. ### Procedural history - November 9, 2005: Applicant filed an Application with the Administrative Tribunal; transmitted to Respondent on November 15, 2005. - December 16, 2005: Respondent filed its Answer. - February 16, 2006: Parties informed that requests for document production had been denied; the Fund’s Answer transmitted to Applicant. - March 16, 2006: Applicant submitted her Reply. - April 19, 2006: Fund’s Rejoinder filed. - Pleadings were suspended pursuant to Rule XVII, para. 3 to consider Applicant’s document production requests. ### Requests for production of documents (Applicant’s Requests) and Tribunal rulings - Applicant requested pursuant to Rule VII, para. 2(h) and Rule XVII: 1. All documents showing staff members and employees in “Office 1” who have been promoted to grade A14 and above since January 1, 2003, showing the grade and date of promotion, and the reasons why those staff members and employees were promoted. 2. All documents showing the merit increases, performance ratings, and staff members’ quartiles that were in fact given to all “Office 1” employees, including any staff members or employees who left “Office 1”, for calendar year 2002, and what each staff member or employee received. 3. All documents showing that Applicant’s performance during the 2002 calendar year was insufficient for her promotion to grade A14 compared to that of her peers in “Office 1”. - Respondent’s responses: - To Request 1: partially complied by attaching notices of promotion to Grade A14 for the requested period; objected to producing reasons for promotions on privacy grounds. - To Request 2: objected on privacy grounds; attached a redacted merit matrix to its Rejoinder. - To Request 3: maintained it did not possess additional documents responsive to the request. - Tribunal decision (February 16, 2006): - Denied Applicant’s request for production of documents. - Sustained Respondent’s privacy objections to Requests 1 and 2 (Rule XVII, para. 2). - Denied Request 3 for failure to proffer evidence that additional responsive documents existed or access had been denied (Rule XVII, para. 1). ### Evidentiary rulings on notes and health documents - Respondent sought exclusion of Applicant’s notes relating to interactions with the Ombudsperson and documents relating to Applicant’s health. - Tribunal rulings: - Declined to strike health-related documents; left assessment of probative weight for later consideration. - Declined to strike Applicant’s notes about the Ombudsperson interaction; distinguished such notes from an Ombudsperson-generated report and admitted them into the record. ### Anonymity and oral proceedings - Applicant requested anonymity; Tribunal granted anonymity under Rule XXII due to allegations of misconduct and mistreatment and the sensitive nature of evidence. - Applicant requested oral proceedings; Tribunal declined to hold oral proceedings given the transcript of the full Grievance Committee evidentiary hearing and other written records. ### Factual background and key timeline - Employment history and allegations: - Applicant began employment with the Fund in October 1998 as a contractual employee in “Office 1” (Department 1). - September 2001: appointed as a staff member of the Fund following competition for a vacancy; remained in “Office 1”. - Applicant alleged harassment by “Supervisor 1” beginning in October 2000 and continuing for nearly three years until her transfer. - Administrative review and disciplinary action: - August 8, 2003: Applicant, through counsel, filed a request for administrative review pursuant to GAO No. 31 contesting the May 19, 2003 decision to give her a 3.0% merit award for the period January 1, 2002 to December 31, 2002. - August 21, 2003: Acting Director of HRD requested an Ethics Officer investigation into apparent improper access to and use of confidential personnel information. - Applicant was placed on administrative leave with pay pending misconduct proceedings; February 2004: Applicant disciplined for misconduct; March 1, 2004: Applicant returned to work in an assignment in “Department 2”. - Office leadership: - “Office Director 1” served as Director from September 1999 until March 2003. - “Office Director 2” served as Assistant Director until May 2002 and returned as Director in March 2003. - During “Office Director 2”’s absence, “Supervisor 1” served as Acting Assistant Director. - 2002 performance rating and merit increase: - Applicant’s 2002 Annual Performance Report (“APR”) rating: “2” (on a scale of “1” to “4”, “1” being “outstanding”). - Merit increase awarded: 3.0%. - APR signed by “Supervisor 1” and “Office Director 2”. - APR comments: majority positive—“very strong analytical skills,” “extremely articulate” oral communication skills, and “writing is also very articulate”; also encouraged “continued improvements in balancing timeliness and scope/precision” and “more frequent, informal progress reporting especially as regards work product schedules.” - Applicant listed as a career interest: “Inter-departmental mobility, post-haste, for the good of the department, my personal well-being and for satisfying career involvement and development opportunities.” ### Ethics Officer investigation and disciplinary charges - Ethics Officer findings: - Located 102 downloads of PeopleSoft data, including a 157 page list of merit increases for all Fund staff grades A-2 through B-5 for 2003. - Located 21 pages of “chrons” pertaining to “Office 1” staff and 100 BRS reports for “Office 1” for various pay periods during 2000-2003. - Some data were sent by email to Applicant’s counsel and to her home email account. - Applicant acknowledged using Fund-wide confidential personnel databases and an additional “Office 1” data system to produce data used in her administrative review and to send them outside the Fund. - Ethics Officer conclusion: - Applicant’s retrieval and use of confidential Fund information pertaining to colleagues for preparation of her administrative review was “not proper” and violated N-Rule 6, the Code of Conduct, and Section 7.01(vi) of GAO 33. - Noted Applicant’s “considerable good faith” in seeking guidance from Fund officials about permissible information use. ### Applicant’s Declaration (January 13, 2004) - Declaration acknowledgments included: 1. “I agree that it is not permissible under the Fund’s regulations for a staff member to use confidential information, including the confidential personnel data and information of other Fund employees, for private use.” 2. “I now know that the Fund considers the use of confidential personnel data and information by a staff member in seeking the remedies available under the Fund’s internal employment dispute resolution mechanisms to be a private use.” 3. “I now know that the Fund considers seeking remedies under the Fund’s internal employment dispute resolution mechanisms to not be part of a staff member’s job function.” 4. “I agree that confidential personnel data and information which a staff member is given access to for purposes of their job function... cannot be accessed or used for any purpose other than their job function.” 5. “I agree that it is not permissible under the Fund’s regulations for confidential personnel data and information of other Fund employees to be accessed, viewed, or used by me for any purpose which is not part of my job function, without the prior approval of my supervisor or other Fund employee(s) authorized to grant such approval.” 6. “I assure the Fund that I understand the serious institutional need the Fund has to ensure that its staff be granted access to confidential personnel data and information only for the purposes of their job function...” 7. “I fully understand the Fund’s need to protect the privacy of the Fund’s employees...” 8. “I fully understand that any future unauthorized disclosure or use of the confidential personnel data and information of other Fund employees to or by persons outside the Fund for any purpose which is not part of my job function is considered by the Fund to constitute misconduct...” 9. “I fully understand that I have the same rights as all other Fund staff in accessing and using confidential personnel data and information obtained through the discovery processes provided under the Fund’s internal employment dispute resolution mechanisms.” - Applicant maintained that GAO No. 31, Section 6.01.2 supports using facts known to the staff member to support allegations in an administrative review. ### Disciplinary decision, penalties, and remedial adjustments - September 23, 2003: Acting Director of HRD formally charged Applicant with misconduct pursuant to GAO No. 33, Section 10.02. - February 25, 2004: HRD Director concluded Applicant “retrieved and downloaded confidential Fund data... for the purpose of preparing your Request for Administrative Review”; shared some data with counsel; conduct “was not required by or connected to the performance of your assigned duties... amounted to ‘serious misconduct.’” - Penalties and corrective actions imposed: - HRD Director decided against termination and imposed a “formal written reprimand” pursuant to GAO No. 33, Section 8.01. - Official notice that any future unauthorized access/use of confidential Fund information would be grounds for immediate termination. - Applicant’s access to confidential Fund data subject to monitoring for a period of two years. - Applicant required to undertake ethics training. - Merits/grievance remedy: - HRD Director reactivated the Grievance Committee process and adjusted Applicant’s merit increase from 3 percent to 4.58 percent (retroactive to May 1, 2003), “consistent with the Fund-wide average increase for staff in her grade and salary range quartile who were rated ‘2’ in the May 2003 merit pay exercise.” ### Grievances, Grievance Committee Recommendation, Management response - October 10, 2003: Applicant filed a Grievance contesting the merit increase percentage and alleging harassment, bias and retaliation by “Supervisor 1”. - August 24, 2004: Applicant filed a second Grievance contesting the February 25, 2004 disciplinary decision. - Grievance Committee (May 16, 2005) recommended: 1. The Fund’s disciplinary finding of misconduct and the penalty were appropriate. 2. The decisions to assign a performance rating of “2” for 2002 and not to promote her to Grade A14 were not arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome; the Fund had remedied her 3 percent merit increase through retroactive adjustment to 4.58 percent. 3. Ms. “BB” had been subjected to harassment in violation of Fund policies; Committee recommended compensation in the amount of $80,000. - Management response: - June 30, 2005: Deputy Managing Director remanded the remedy for further consideration and requested Legal Department guidance on damage awards. - July 21, 2005: General Counsel memorandum advised that monetary relief could include damages for intangible injury but awards exceeding what is necessary to make the grievant whole could be punitive and exceed the Committee’s mandate. - August 22, 2005: Grievance Committee confirmed its originally recommended remedy after considering Management’s views. - September 29, 2005: Management accepted the Grievance Committee’s recommendation and paid Applicant $80,000 for workplace harassment. - Management also accepted the Committee’s recommendation for partial attorneys’ fees. ### Applicant’s claims before the Tribunal and relief sought - Applicant’s principal contentions in application (filed November 9, 2005) included: - hostile work environment, harassment, bias, discrimination, deprivation of resources, intimidation, retaliation and abuse of power by her immediate supervisor over three years; - mitigation failures by supervisors and Office Director; - that mistreatment manifested in a “2” rating, 3 percent merit increase, and non-promotion to A14; - disciplinary decision invalid for procedural defects and impermissible factors; - Grievance Committee procedural failures and alleged breach of a non-disclosure agreement by the Fund in submitting certain documents. - Relief sought included: - a merit increase of at least 6 percent (retroactive to May 1, 2003); - promotion to Grade A14 (retroactive to May 1, 2003); - a performance rating of “1” for 2002; - $200,000 for “egregious mistreatment” and $500,000 for “moral injury, or alternatively, as punitive damages”; - $50,000 for alleged breach of the non-disclosure agreement; - $10,000 for actions of the Grievance Committee; - rescission of the misconduct decision, removal of related documentation from Applicant’s personnel file, six months’ salary for due process and reputational injury; and - attorney’s fees and costs. ### Respondent’s principal contentions - Applicant not entitled to compensation beyond the Grievance Committee award implemented by the Fund. - Harassment claim had been effectively addressed by supervisors and HRD. - Fund’s decisions on merit increase, performance rating, and non-promotion were fair and appropriate. - Retroactive adjustment from 3 percent to 4.58 percent was appropriate and based on Fund-wide comparisons. - Disciplinary decision under GAO No. 33 was lawful, and procedural safeguards were observed. - No violation of a non-disclosure agreement or improper Grievance Committee interference by Management. ### Issues for Tribunal determination - Whether Applicant is entitled to monetary compensation for workplace harassment additional to the $80,000 granted by the Fund on the Committee’s recommendation. - Whether the Fund abused its discretion regarding merit increase, performance rating and non-promotion arising from the 2002 appraisal. - Whether Applicant was improperly disciplined for alleged use of confidential personnel information in preparing her administrative review request. - Whether the Fund violated a non-disclosure agreement by submitting certain documents to the Grievance Committee or improperly interfered in the Committee process. ### Tribunal’s mandate, policy definitions, and precedent - The Tribunal reviews cases de novo, making findings of fact and conclusions of law and interpreting Fund law. - Harassment definition (Staff Bulletin 99/15): “Harassment is any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment.” - Intimidation examples include degrading public tirades, deliberate insults related to competence, threatening or insulting comments including by e-mail, deliberate desecration, and malicious/unsubstantiated complaints. - Code of Conduct (1998) — Courtesy and respect: “You should treat your colleagues... with courtesy and respect, without harassment, or physical or verbal abuse.” - Precedent Mr. “F” (IMFAT Judgment No. 2005-1): Tribunal awarded $100,000 for failures to take effective measures regarding religious intolerance and workplace harassment. ### Tribunal findings on harassment and remedial sufficiency - Evidence showed “Supervisor 1” lacked tact and approachability; two co-workers testified that “Supervisor 1” was unduly critical, inaccessible, and exclusionary. - Tribunal view: - Demanding supervision and attention to detail is not automatically harassment. - The pattern of behavior did not equate to the severe religious intolerance in Mr. “F”. - The central question was whether additional compensation beyond the Grievance Committee’s $80,000 award was warranted; the Tribunal answered that question in the negative. - Fund’s remedial actions: - Office Director intervened and took direct supervision of Applicant at one point. - “Office Director 2” worked on “people management skills” with “Supervisor 1.” - HRD arranged a Temporary Assignment Period (TAP) in “Department 2,” which was deferred during administrative leave and subsequently implemented. - Tribunal found Fund’s responsive actions mitigated potential liability. ### Tribunal review of discretionary managerial decisions (standard and outcomes) - Standard: discretionary decisions will not be overturned unless arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or carried out in violation of fair and reasonable procedures. - Performance rating (2002): - Applicant’s APR largely positive but recorded reservations about timeliness and scope/precision. - Applicant did not establish clear error or improper motive; Tribunal deferred to supervisors and sustained the “2” rating. - Merit increase (2002): - Initial award: 3 percent; Fund later adjusted to 4.58 percent (retroactive to May 1, 2003). - Tribunal found the retroactive 4.58 percent adjustment reasonable and within managerial discretion. - Non-promotion to Grade A14: - Governing rule: GAO No. 11, Rev. 4, Section 5.08.1 regarding promotion within an established range where duties and qualifications are met. - Supervisors assessed Applicant as not sufficiently strong for promotion and noted competitive constraints and the relevance of professional certification. - Tribunal found the non-promotion complaint unfounded. ### Tribunal review of disciplinary decision under GAO No. 33 - Issues addressed: - Did Applicant engage in misconduct? - Was due process observed? - Was the penalty proportionate? - Findings on misconduct: - Applicant downloaded substantial confidential personnel data (102 PeopleSoft downloads including a 157 page list; 21 pages of “chrons”; 100 BRS reports) and sent some data outside the Fund. - Relevant rules: Rule N-6; Rule N-11; GAO No. 33, Section 7.01(vi); Code of Conduct confidentiality obligations. - Tribunal concluded downloading large amounts of individual salary and merit information constituted a serious violation and contravened Fund internal law, notwithstanding Applicant’s good faith. - Findings on due process: - HRD Director based decision on Ethics Officer Report, a meeting with Applicant, and Applicant’s written responses. - Tribunal found Applicant was accorded full opportunity to present views and defend herself; no violation of the separation of functions or procedural irregularity. - Findings on proportionality of penalty: - Applicable sanctions listed in GAO No. 33, Section 8.01 include written warning, formal written reprimand, reassignment, reduction in salary, demotion, termination, etc. - GAO No. 33, Section 8.02 requires consideration of proportionality and specified factors. - Penalties imposed: a “formal written reprimand”; official notice that future unauthorized use would be grounds for immediate termination; monitoring of access for two years; required ethics training. - Tribunal concluded penalties were proportionate and appropriate. ### Role and effect of Applicant’s Declaration (January 13, 2004) - Declaration facilitated Applicant’s return to work and termination of paid administrative leave by assuring the Fund she would not use confidential personnel data for private purposes in the future. - The Declaration was treated as a mitigating factor but not as an admission that precluded contesting the misconduct decision. - Tribunal found Applicant’s allegation that the Fund breached a non-disclosure agreement in settlement negotiations without merit. ### Tribunal conclusion and disposition - The Tribunal concluded: - The Fund’s harassment remedial measures and the $80,000 award implemented by the Fund were sufficient; no additional compensation awarded. - The Fund did not abuse its discretion regarding the performance rating, merit increase (including retroactive adjustment to 4.58 percent), or non-promotion to Grade A14. - Applicant’s downloading and use of confidential personnel data constituted misconduct under Fund internal law. - Disciplinary procedures complied with due process and the penalties imposed were proportionate. - Final decision: The Administrative Tribunal of the International Monetary Fund unanimously decided that the Application of Ms. “BB” is denied. - Decision dated: May 23, 2007. *Administrative Tribunal of the International Monetary Fund — Judgment concerning Ms. “BB” (May 23, 2007).* ### Introduction ### j2007-4 - Introduction ### Case overview - The Administrative Tribunal of the International Monetary Fund met on May 22 and 23, 2007, to adjudge the case brought against the International Monetary Fund by Ms. “BB”. - Applicant (Ms. “BB”) contests: - her performance rating for 2002; - the percentage of her merit increase; - her lack of promotion to Grade A14; - alleged harassment and a hostile work environment by “Supervisor 1” that she says affected evaluations, career progression, and health; - the Fund’s disciplinary decision pursuant to GAO No. 33 for alleged improper use of confidential personnel information in pursuing her request for administrative review; - actions of the Fund’s Grievance Committee and Fund Management relating to the Grievance Committee’s review of her Grievance. - Respondent (the Fund) maintains: - it did not abuse its discretion regarding the performance rating, merit increase, or career progression decisions and that those decisions were reasonably supported by Applicant’s performance and not influenced by alleged harassment; - Applicant is not entitled to compensation for workplace harassment beyond the grant already made on the recommendation of the Grievance Committee, which the Fund asserts does not represent acceptance of liability; - the disciplinary action under GAO No. 33 against Ms. “BB” should be sustained; - certain acts challenged by Applicant relating to the review of her Grievance are outside the Tribunal’s jurisdiction. ### Procedural history - November 9, 2005: Ms. “BB” filed an Application with the Administrative Tribunal; transmitted to Respondent on November 15, 2005. - November 28, 2005: Registrar circulated a notice summarizing issues raised in the Application pursuant to Rule IV, para. (f). - December 16, 2005: Respondent filed its Answer. - Pleadings were suspended pursuant to Rule XVII, para. 3 to consider Applicant’s document production requests. - February 16, 2006: Parties were informed that the requests for document production had been denied; the Fund’s Answer was transmitted to Applicant. - March 16, 2006: Applicant submitted her Reply. - April 19, 2006: Fund’s Rejoinder filed. ### Requests for production of documents (Applicant’s Requests) - Applicant requested, pursuant to Rule VII, para. 2(h) and Rule XVII: 1. All documents showing staff members and employees in “Office 1” who have been promoted to grade A14 and above since January 1, 2003, showing the grade and date of promotion, and the reasons why those staff members and employees were promoted. 2. All documents showing the merit increases, performance ratings, and staff members’ quartiles that were in fact given to all “Office 1” employees, including any staff members or employees who left “Office 1”, for calendar year 2002, and what each staff member or employee received. 3. All documents showing that Applicant’s performance during the 2002 calendar year was insufficient for her promotion to grade A14 compared to that of her peers in “Office 1”. - Respondent’s responses: - To Request 1: Respondent partially complied by attaching all notices of promotion to Grade A14 for the requested period (notices routinely circulated to staff). Fund objected to producing reasons for promotions on privacy grounds (e.g., APRs). - To Request 2: Fund objected that documents showing merit increases, performance ratings, and salary quartiles would infringe privacy; attached a redacted merit matrix to its Rejoinder. - To Request 3: Fund maintained it did not possess additional documents responsive to the request concerning Applicant’s performance compared to peers. - Tribunal decision (February 16, 2006): - Denied Applicant’s request for production of documents. - Sustained Respondent’s privacy objections to Requests 1 and 2 (Rule XVII, para. 2). - Denied Request 3 because Applicant did not proffer evidence that the Fund had additional responsive documents or that she had been denied access as required by Rule XVII, para. 1. ### Requests to strike documents and evidentiary rulings - Respondent requested exclusion from the record of: - Applicant’s notes relating to interactions with the Fund’s Ombudsperson (on the basis that Ombudsperson Terms of Reference bar calls as witness and Fund would be prejudiced). - Documents relating to Applicant’s health (on grounds they could not be rebutted without Applicant waiving confidentiality and were of no probative value as they did not assess cause or link to Fund actions). - Testimony noted by Tribunal: - Applicant testified before the Grievance Committee that she experienced adverse health effects she attributed to alleged harassment by her supervisor. - HRD Director testified that the Ombudsperson requested that HRD seek a transfer for Applicant because the Ombudsperson felt the work relationship may be affecting Applicant’s health. - Tribunal rulings: - Declined to strike health-related documents; left assessment of probative weight to later consideration of liability and damages. - Declined to strike Applicant’s notes concerning the Ombudsperson interaction; distinguished such notes from an Ombudsperson-generated report and allowed them in the record. ### Documents specifically requested and submitted - The Tribunal requested Applicant submit the Declaration of January 13, 2004; Applicant complied with submission alongside her Reply. - The Tribunal considered the January 13, 2004 Declaration essential to disposition of: - whether the HRD Director in disciplining Applicant for misconduct considered impermissible factors in violation of Fund internal law; and - whether the Fund improperly submitted the document to the Grievance Committee in violation of an alleged “non-disclosure agreement.” ### Request for oral proceedings and anonymity - Applicant requested oral proceedings (Rule VII, para. 2(i) and Rule XIII, para. 1); Respondent opposed, citing an ample written and Grievance Committee record. - Tribunal determination on oral proceedings: - Not to hold oral proceedings in view of the transcript of the full evidentiary hearing before the Grievance Committee, at which Applicant, three supervisors, two co-workers, and the HRD Director testified. - Cited authority to weigh the Grievance Committee record as an element of evidence (e.g., IMFAT precedents). - Applicant requested anonymity pursuant to Rule XXII; Tribunal granted anonymity on the basis of the case involving allegations of misconduct by Applicant and allegations of mistreatment by a supervisor and the sensitive nature of evidence brought to light. ### Factual background and key timeline - Employment history and allegations: - Applicant began employment with the Fund in October 1998 as a contractual employee in “Office 1”, an organizational unit of “Department 1”. - September 2001: Appointed as a staff member of the Fund following competition for a vacancy; remained in “Office 1”. - Applicant alleges harassment and a hostile work environment by “Supervisor 1” beginning in October 2000 and continuing for nearly three years, until her transfer from the assignment with the Office. - Administrative review and disciplinary action: - August 2003: Applicant filed a request for administrative review contesting merit increase for 2002, performance rating, lack of promotion to Grade A14, and harassment by “Supervisor 1”. - A misconduct investigation was initiated against Applicant for alleged improper use of confidential personnel information in preparing the administrative review request. - Applicant was placed on administrative leave with pay pending outcome of misconduct proceedings. - February 2004: Applicant disciplined for misconduct. - March 1, 2004: Applicant returned to work at the Fund in an assignment in “Department 2”. - Office leadership during Applicant’s tenure: - “Office Director 1” served as Director from September 1999 until March 2003. - “Office Director 2” served as Assistant Director until May 2002 (transferred) and later returned as Director in March 2003. - During “Office Director 2”’s absence, “Supervisor 1” served as Acting Assistant Director. - Performance rating and merit increase for 2002: - Applicant’s 2002 Annual Performance Report (“APR”) rating: “2” (on a scale of “1” to “4”, “1” being “outstanding”). - Merit increase awarded: 3.0%. - APR signed by “Supervisor 1” and “Office Director 2”. - Majority of APR comments were positive: “very strong analytical skills,” “extremely articulate” oral communication skills, and “writing is also very articulate.” - APR also encouraged “continued improvements in balancing timeliness and scope/precision” and “more frequent, informal progress reporting especially as regards work product schedules.” - Applicant listed under “Career and Work Interests” a desire for: “Inter-departmental mobility, post-haste, for the good of the department, my personal well-being and for satisfying career involvement and development opportunities.” *Administrative Tribunal of the International Monetary Fund, meeting of May 22 and 23, 2007.* ### 27. On August 8, 2003, pursuant to GAO No. 31, Applicant through counsel filed with ### 27. ### Background and procedural history - On August 8, 2003, Applicant through counsel filed with “Office Director 2” a request for administrative review pursuant to GAO No. 31 of the May 19, 2003 decision to give Ms. [“BB”] a 3.0% merit award for the period of January 1, 2002 to December 31, 2002. - On August 21, 2003, the Acting Director of the Department of Human Resources (“HRD”) requested the Fund’s Ethics Officer to investigate “apparent misconduct involv[ing] improper access to and use of confidential personnel information, including the provision of such information to person(s) outside the Fund.” - Applicant was placed on administrative leave with pay consistent with GAO No. 13, Rev. 5, Section 9.01 and GAO No. 33, Section 10.08(ii); the leave was later extended until a decision on the alleged misconduct was reached by the HRD Director in February 2004. - The Ethics Officer interviewed Ms. [“BB”] on September 3, 2003, and Applicant submitted views through counsel on September 10, 2003, and additional responses on October 7, 2003 and October 24, 2003. - Settlement negotiations were later conducted with the customary understanding that offers or admissions made in such discussions would not be admissible in subsequent litigation. ### Allegations made in the request for administrative review - The request alleged that Ms. [“BB”] received a 3% merit increase for her 2002 performance “even though” she received a “2” performance rating, and that this merit increase was in “striking disparity” to the merit increases given to other A-level professional staff in “Office 1”. - The request alleged disparate treatment constituting “discrimination and retaliation in violation of the Fund’s personnel policies.” - The request alleged a “failure to communicate” and a pattern since October, 2000 of “discrimination, retaliation, harassment and bias” by [“Supervisor 1”], intended to “isolate Ms. [“BB”] from much of [“Office 1”]’s office life and impair her work and career in the Fund.” - Regarding promotion denial, the request asserted that when Ms. [“BB”] inquired about promotion to grade A14 in each of the past three years, she was told promotion spots were being preserved for others; reasons given included “excellent performance” and “extra effort” and that seniority was a factor. It was noted that Ms. [“BB”] had been in [“Office 1”] and the Fund longer than a male European staff member promoted to A14 that year, and that three prior promotions to grade A14 within [“Office 1”] went to females who were United States nationals. - As to harassment, Applicant alleged that beginning in late 2000 [“Supervisor 1”] “criticized virtually everything Ms. [“BB”] wrote or verbally proposed,” engaged in actions and omissions to isolate her, and that this conduct “most recently manifested itself in the 3% merit award she received on May 19, 2003.” Applicant alleged the treatment “amount to bullying and harassment” and resulted in stress-related health problems, including elevated blood pressure. ### Evidence and Ethics Officer investigation findings - Applicant appended to her request tables showing, by name, salary, merit increase, and performance ratings of all “Office 1” staff, work-product data of the Office, overtime hours, and Fund-wide data by grade on merit increase distributions. - The Ethics Officer, authorized under the Deputy Managing Director’s Memorandum to Staff of August 10, 2001, accessed Applicant’s computer hard drive and emails and reported finding: - 102 downloads of PeopleSoft data, including a 157 page list of merit increases given to all Fund staff grades A-2 through B-5, for 2003; - 21 pages of “chrons” pertaining to “Office 1” staff; - 100 BRS reports for “Office 1” for various pay periods during 2000-2003. - Some of the data had been sent by email to Ms. [“BB”]’s counsel and to her home email account. - Applicant had access, for work responsibilities, to Fund-wide confidential personnel databases and an additional data system specific to “Office 1”; she “readily acknowledge[d]” using these systems to produce the data included in the request for administrative review and to send them via email outside the Fund to her counsel. - Applicant asserted she used the data solely for purposes of her administrative review and disclosed the data only to her counsel, citing GAO No. 31, Section 6.01.2 (which directs staff requesting review to provide “all facts known to the staff member that tend to support his or her allegations”). - The Ethics Officer concluded that Ms. [“BB”]’s search for and extraction of the relevant data “was not proper,” and that she “retrieved and used confidential Fund information, pertaining to her colleagues, for her own private advantage in violation of N-Rule 6, as well as the Code of Conduct and Section 7.01(vi) of GAO 33.” - The Ethics Officer also noted Applicant’s “considerable good faith” in seeking guidance from Fund officials about what information could properly be included in a request for administrative review; those inquiries had not elicited a substantive response. ### Applicant’s responses and declaration - Applicant, through counsel, argued that using confidential information in a request for administrative review does not constitute use for a “private advantage” because GAO No. 31 exists “to facilitate the ... resolution of disputes,” and that using data to support a request for review is part of that remedial process. - On January 13, 2004, Applicant executed a Declaration containing, inter alia, the following acknowledgments and statements: 1. “I agree that it is not permissible under the Fund’s regulations for a staff member to use confidential information, including the confidential personnel data and information of other Fund employees, for private use.” 2. “I now know that the Fund considers the use of confidential personnel data and information by a staff member in seeking the remedies available under the Fund’s internal employment dispute resolution mechanisms to be a private use.” 3. “I now know that the Fund considers seeking remedies under the Fund’s internal employment dispute resolution mechanisms to not be part of a staff member’s job function.” 4. “I agree that confidential personnel data and information which a staff member is given access to for purposes of their job function... cannot be accessed or used for any purpose other than their job function.” 5. “I agree that it is not permissible under the Fund’s regulations for confidential personnel data and information of other Fund employees to be accessed, viewed, or used by me for any purpose which is not part of my job function, without the prior approval of my supervisor or other Fund employee(s) authorized to grant such approval.” 6. “I assure the Fund that I understand the serious institutional need the Fund has to ensure that its staff be granted access to confidential personnel data and information only for the purposes of their job function...” 7. “I fully understand the Fund’s need to protect the privacy of the Fund’s employees...” 8. “I fully understand that any future unauthorized disclosure or use of the confidential personnel data and information of other Fund employees to or by persons outside the Fund for any purpose which is not part of my job function is considered by the Fund to constitute misconduct...” 9. “I fully understand that I have the same rights as all other Fund staff in accessing and using confidential personnel data and information obtained through the discovery processes provided under the Fund’s internal employment dispute resolution mechanisms.” - Applicant maintained that the right to be heard under generally recognized principles of law should permit use of relevant facts and data in administrative review, citing GAO No. 31, Section 6.01.2. ### Disciplinary decision, penalties, and remedies - On September 23, 2003, the Acting Director of HRD formally charged Applicant with misconduct pursuant to GAO No. 33, Section 10.02. - On February 25, 2004, the HRD Director concluded that Applicant “retrieved and downloaded confidential Fund data pertaining to your colleagues in [“Office 1”] and on Fund staff generally for the purpose of preparing your Request for Administrative Review in August 2003”; shared some of these data with counsel; and used the confidential personnel data to support her arguments and included some of the data in her submission to the Director of [“Office 1”]. - The HRD Director concluded this acquisition and use “was not required by or connected to the performance of your assigned duties in [“Office 1”]; its acquisition and use were rather for the sole purpose of preparing your Request for Administrative Review,” and amounted to “serious misconduct.” - Penalties and corrective actions imposed: - The HRD Director decided against termination of employment and imposed a “formal written reprimand,” pursuant to GAO No. 33, Section 8.01. - Applicant was put on official notice that any future access to or acquisition or use of confidential Fund information or data for any purpose other than assigned Fund duties would be grounds for immediate termination of employment. - Applicant’s access to and use of confidential Fund data would be subject to monitoring for a period of two years. - Applicant would be required to undertake ethics training. - As to the merits/grievance remedy, the HRD Director notified the Grievance Committee Chair on February 25, 2004 that Applicant’s original Grievance should be reactivated, and the Fund adjusted Applicant’s merit increase from 3 percent to 4.58 percent (retroactive to May 1, 2003), “consistent with the Fund-wide average increase for staff in her grade and salary range quartile who were rated ‘2’ in the May 2003 merit pay exercise.” ### Administrative review channels and next steps - The Acting HRD Director informed Applicant on August 21, 2003 that she could proceed directly to the Grievance Committee regarding her administrative review request under GAO No. 31. - The HRD Director’s decision reactivated the Grievance Committee process, with the merit adjustment and disciplinary actions documented as part of the resolution framework. *Source: HRD Director’s Decision (February 25, 2004) and Ethics Officer Report of Investigation, as set out in the IMF document.* ### 47. Accordingly, on October 10, 2003, Applicant filed a Grievance, contesting the percentage ### Applicant’s Grievances, Grievance Committee Recommendation, Management Response, and Tribunal Issues ### Procedural history and consolidation - On October 10, 2003, Applicant filed a Grievance contesting the percentage of her merit increase for 2002 as inconsistent with her performance and improperly influenced by bias, discrimination and retaliation; she additionally alleged harassment, bias and retaliatory treatment by “Supervisor 1”. - On August 24, 2004, Applicant filed a second Grievance contesting the February 25, 2004 disciplinary decision for alleged misconduct. - By request of the parties, the two Grievances were consolidated and considered by the Grievance Committee through oral hearings and briefs. ### Grievance Committee Recommendation and findings (May 16, 2005) - The Committee concluded: - (1) the Fund’s decision that Ms. “BB” had engaged in misconduct was appropriate, as was the penalty imposed; - (2) the decisions to assign Ms. “BB” a performance rating of “2” for the year 2002 and not to promote her to Grade A14 were not arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome, and the Fund had remedied her complaint in respect of her 3 percent merit increase through its retroactive adjustment to 4.58 percent; - (3) Ms. “BB” had succeeded in showing that she had been subjected to harassment in violation of Fund policies, for which the Committee recommended compensation in the amount of $80,000. ### Management’s reaction, legal guidance, and Committee confirmation - June 30, 2005: Deputy Managing Director informed the Grievance Committee Chair that “...while management accepts the findings and conclusions of the Grievance Committee that are based on its review of the record and testimony of the witnesses in this case, we have some concerns regarding the basis for the Committee’s award of damages.” Management remanded the case to the Committee “for further consideration and explanation.” - Management requested that the Legal Department prepare a submission providing views on “... a framework for consideration of damage awards in general, under the Fund’s dispute resolution system.” - July 21, 2005: General Counsel memorandum titled “Determination of Monetary Damages by the Grievance Committee” asserted: - relief awarded by the Grievance Committee “... could include monetary relief, including damages for intangible injury, but an award that would be in excess of the compensation considered necessary to make the grievant whole would essentially be punitive in nature” and would “exceed the mandate of the Committee;” - the memorandum set out factors to be weighed in assessing monetary damages in cases of discrimination, harassment or a hostile work environment. - August 11, 2005: Ms. “BB” declined to comment on the Committee’s recommended remedy and urged rejection of the Deputy Managing Director’s “remand” as not authorized by GAO No. 31. - August 22, 2005: Grievance Committee Chair informed the Deputy Managing Director that, having considered the Fund’s views, the Committee confirmed its originally recommended remedy and tracked the General Counsel’s factors while asserting the relief was “not in any way intended to be punitive.” - September 29, 2005: Management notified Ms. “BB” that it accepted the Grievance Committee’s recommendation; the Fund paid Applicant $80,000 in accordance with the Committee’s recommendation for workplace harassment. - The Committee additionally recommended partial attorneys’ fees based upon Applicant’s partial success; Management accepted this recommendation. - September 30, 2005: General Counsel sent an additional memorandum expressing concern that the Committee’s award was “at least in part” punitive and questioned reliance on the Administrative Tribunal’s Judgment in Mr. “F” as the basis for the calculation of damages. ### Applicant’s subsequent action and principal contentions (filed November 9, 2005) - Applicant filed an Application with the Administrative Tribunal on November 9, 2005. - Principal contentions summarized: 1. Applicant was subjected for a period of three years to a hostile work environment, harassment, bias, discrimination, deprivation of resources, intimidation, retaliation and abuse of power by her immediate supervisor, in violation of Fund regulations. 2. Respondent did not remove Applicant from “Supervisor 1”’s immediate supervision in mid-2002; the Director of the Office “tacitly approved of and supported” the mistreatment. 3. The mistreatment “manifested itself” in Applicant’s performance rating of “2” for 2002, her 3 percent merit increase, and lack of promotion to Grade A14. 4. Non-promotion to Grade A14 was based on erroneous facts, disregarded essential facts, was based on an erroneous assessment of performance, and was improperly influenced by harassment, bias and disparate treatment. 5. The Fund erred in awarding a 3 percent merit increase for 2002; peers for the merit increase should have been other staff in her organizational unit rather than Fund-wide; her increase should have been more than 6 percent. The retroactive adjustment to 4.58 percent left the increase too low. 6. The disciplinary decision is invalid: the HRD Director violated “separation of functions,” fair investigation, and due process; GAO No. 33 was violated by imposing discipline for “conduct which did not constitute misconduct;” impermissible factors were considered; the penalty was disproportionate. 7. The Grievance Committee: (a) failed to issue its Recommendation and Report within 30 days as required by GAO No. 31; (b) transmitted the Report to the Staff Association without deleting Applicant’s name; (c) improperly relied on Applicant’s Declaration of January 13, 2004 while failing to address the non-disclosure claim; and (d) “reopen[ed] the record of proceedings after the record was closed.” 8. The Fund breached a non-disclosure agreement by submitting Applicant’s Declaration of January 13, 2004 and an unredacted disciplinary decision to the Grievance Committee. 9. Applicant seeks relief including: - a merit increase of at least 6 percent (retroactive to May 1, 2003); - promotion to Grade A14 (retroactive to May 1, 2003); - a performance rating of “1” for 2002; - $200,000 for “egregious mistreatment” by “Supervisor 1,” plus eighteen months’ salary for failure of the Office Director to take action; - continuation of employment in a department other than the organizational unit where harassment occurred; - $500,000 “for moral injury, or alternatively, as punitive damages;” - $50,000 for alleged breach of the non-disclosure agreement; - $10,000 for actions of the Grievance Committee; - rescission of the misconduct decision, removal of related documentation from Applicant’s personnel file, six months’ salary for violation of due process and injury to reputation and health; and - attorney’s fees and costs. ### Respondent’s principal contentions (Answer and Rejoinder) - Key points summarized: 1. Applicant has not shown entitlement to compensation beyond that already recommended by the Grievance Committee and implemented by the Fund; hostile work environment claims require a clear connection to adverse administrative action by the Fund. 2. Applicant’s claim of harassment was effectively addressed by supervisors and the HRD Director. 3. Management’s decision to accept the Grievance Committee’s recommendation to “honor the tradition” should not be treated as an admission that the Committee’s findings are true and uncontested. 4. Fund’s decisions on merit increase, performance rating, and non-promotion were fair and appropriate, comparing Applicant to peers. 5. Applicant has not shown entitlement to “at least 6 percent” for 2002; the retroactive adjustment from 3 percent to 4.58 percent was appropriately based on Fund-wide comparisons in Applicant’s grade and salary quartile. 6. Applicant has not demonstrated entitlement to a “1” performance rating for 2002 or that assessment was unfairly influenced by the alleged harassing supervisor. 7. Non-promotion to Grade A14 was consistent with assessments by three different supervisors and limited by factors including constraints on Grade A14 positions and Applicant’s lack of professional certification. 8. No substantive or procedural error in the disciplinary decision; the HRD Director did not violate “separation of functions” by meeting with Applicant before imposing sanction, as the meeting gave Applicant the opportunity to respond under GAO No. 33. 9. The conduct for which Applicant was disciplined constituted misconduct under Fund regulations; the HRD Director did not rely on impermissible factors. 10. Submission of an unredacted disciplinary decision and Applicant’s Declaration of January 13, 2004 did not violate a “non-disclosure agreement”; the Declaration was not an “offer or compromise.” 11. The Fund is not responsible for alleged Grievance Committee procedural issues (timeliness, transmission to Staff Association with identifying information, or “reopening the record”). 12. Applicant is not entitled to damages for “moral injury” or “punitive damages” for Fund acts including promotion of her former supervisor. ### Issues the Tribunal must consider - The Tribunal framed the issues as: - (a) entitlement to monetary compensation for workplace harassment additional to the $80,000 granted by the Fund on the Committee’s recommendation; - (b) whether the Fund abused its discretion regarding merit increase, performance rating and non-promotion arising from the 2002 appraisal; - (c) whether Applicant was improperly disciplined for alleged use of confidential personnel information in preparing her administrative review request; - (d) whether the Fund (i) violated a non-disclosure agreement by submitting certain documents to the Grievance Committee, or (ii) improperly interfered in the Committee process by raising concerns as to the recommended remedy. - The Tribunal noted that the Fund had granted $80,000 to Applicant on the basis of the Grievance Committee’s recommendation, and Applicant seeks an additional $200,000 for “egregious mistreatment” and $500,000 for “moral injury, or alternatively, as punitive damages.” - The Tribunal must address the preliminary question of the effect of the Grievance Committee’s recommendation and its acceptance by Fund Management on the Tribunal’s disposition of Applicant’s harassment allegation. - The Tribunal recalled that its review “fully penetrates the layer of administrative review provided by the Grievance Committee” because it “decides each case de novo,” while drawing upon the record assembled through review procedures; the Grievance Committee is advisory and only empowered to make recommendations to the Managing Director. *Source: Administrative Tribunal case materials and recommendations, Grievance Committee and Management memoranda, Applicant’s Application and Respondent’s Answer and Rejoinder.* ### 65. Moreover, this Tribunal has observed that “[t]he authority of the Administrative Tribunal ### j2007-4 - 65. Moreover, this Tribunal has observed that “[t]he authority of the Administrative Tribunal ### Mandate and authority of the Tribunal - The Tribunal “has observed that ‘[t]he authority of the Administrative Tribunal to make both findings of fact and conclusions of law, and therefore to review de novo the legality of an administrative act of the Fund, stems from the Tribunal’s unique role as the sole judicial actor within the Fund’s dispute resolution system.’” (Ms. “J”, para. 95, citing Report of the External Panel, Review of the International Monetary Fund’s Dispute Resolution System (November 27, 2001)). - The Tribunal’s mandate, in contrast to that of the Grievance Committee, is not simply to resolve disputes but to interpret the law of the Fund. - The Tribunal will weigh the record of the Grievance Committee as part of the evidence before it when considering whether Ms. “BB” experienced “harassment,” as that term is defined by the Fund’s internal law, and whether the Fund is liable for failing to take effective measures in response. ### Fund policy definitions and supervisory responsibilities - Policy on Harassment, Staff Bulletin 99/15 (Harassment – Policy and Guidance to Staff) (June 18, 1999, revised July 21, 1999): - “What is harassment? 3. Harassment is any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment. It can take many different forms, including intimidation or sexual harassment.” - Policy description of intimidation: - “4. Intimidation includes physical or verbal abuse; behavior directed at isolating or humiliating an individual or a group, or at preventing them from engaging in normal activities. Behaviors that might constitute intimidation include, inter alia: a. degrading public tirades by a supervisor or colleague; b. deliberate insults related to a person’s personal or professional competence; c. threatening or insulting comments, whether oral or written—including by e-mail; d. deliberate desecration of religious and/or national symbols; and e. malicious and unsubstantiated complaints of misconduct, including harassment, against other employees.” - Code of Conduct (1998) — Courtesy and respect: - “14. You should treat your colleagues, whether supervisors, peers, or subordinates, with courtesy and respect, without harassment, or physical or verbal abuse. You should at all times avoid behavior at the workplace that, although not rising to the level of harassment or abuse, may nonetheless create an atmosphere of hostility or intimidation.” - Supervisory responsibilities in harassment matters: - Policy on Harassment: “18. The Fund strives for an environment which is free of harassment, and supervisors are expected to support this objective, including stopping harassment in the areas under their supervision....” - Code of Conduct — Conflict resolution: “19. Managers have a responsibility to make themselves available to staff members who may wish to raise concerns in confidence and to deal with such situations in an impartial and sensitive manner. Managers should endeavor to create an atmosphere in which staff feel free to use, without fear of reprisal, the existing institutional channels for conflict resolution, [footnote omitted] and to express concerns about situations which are, or have the potential to be, conflictive.” - Caveat: “14. ... a negative performance report, as such, is not harassment. Supervisors have a responsibility to give appropriate feedback and to take appropriate corrective action. However, such feedback should be made in a reasonable and constructive manner and should not be used as retaliation.” ### Precedent: Mr. “F” (IMFAT Judgment No. 2005-1) - The Tribunal in Mr. “F” examined whether a hostile work environment existed and whether Fund supervisors failed to respond effectively. - Findings in Mr. “F”: - The Section “suffered from an atmosphere of religious bigotry and malign personal relations among certain of its members,” and Mr. “F” suffered accordingly. - There was no evidence that Fund supervisors took effective action to deal with that situation beyond appointing a senior economist who rebuked expressions of religious hostility but whose departure left the atmosphere unchanged. - The Tribunal found grounds to conclude Applicant suffered harassment as defined in the Fund’s Policy on Harassment, though the applicant may have contributed to the atmosphere by his own behavior. - Remedy in Mr. “F”: - The Tribunal awarded Mr. “F” the sum of $100,000 in “compensation for the Fund’s failures a) to take effective measures in response to the religious intolerance and workplace harassment of which Mr. ‘F’ was an object; and b) to give him reasonable notice of the abolition of his post.” (Mr. “F”, Decision, paras. 2 and 3.) - Grievance Committee recommendation in Ms. “BB”’s case invoked Mr. “F” and recommended compensating Ms. “BB” in the amount of $80,000 for workplace harassment. ### Evidence and factual findings on Ms. “BB”’s harassment claim - Applicant’s allegations: - Ms. “BB” made unsubstantiated allegations of discrimination as to her non-promotion but did not assert a link between the allegedly harassing conduct of “Supervisor 1” and gender, race, religion or nationality. When questioned she stated: “I felt personally targeted, regardless of gender, nationality or whatever, or because of all of those things put together. I’m not sure what it is, but it seemed very personal.” - Summary of factual record: - Instances of disagreement over redrafting of work product by “Supervisor 1” and similar complaints regarding “Office Director 2”; characterized as professional-judgment disagreements. - Applicant initially tried to manage the relationship herself, later consulted the Fund’s Ombudsperson and a counselor at the Joint Bank-Fund Health Services Department, and attributed deterioration in her health to her work situation. - February 2001: Applicant approached “Supervisor 1” to express constraint in offering viewpoints; they agreed to try to make things work, which improved “for a couple of weeks, not for very long,” after which Applicant alleged a return “...back to a pattern of hypercriticism, combined with periods of isolation and being completely ignored.” - Later in 2001: Applicant raised concerns with “Office Director 2” (then Assistant Director and Senior Personnel Manager), who reported that Applicant “launched a very personal attack on [‘Supervisor 1’],” and thereafter concluded it was inappropriate for Applicant to continue reporting to “Supervisor 1.” “Office Director 1” agreed to take direct supervision of Applicant’s work. - “Office Director 2” characterized “Supervisor 1” as “very analytical...very driven... and a perfectionist... taking possibly some short-cuts in terms of people’s management,” and testified that he worked on “people management skills” with her, while stating he had “... never witnessed personally any form of harassment or lack of courtesy on the part of [‘Supervisor 1’].” - Co-worker testimony: - One co-worker: “Supervisor 1” was “very nit-picking and very critical and very unapproachable,” observed ostracism or marginalization of Ms. “BB,” and characterized “Supervisor 1” as “... extremely micromanaging...to the point that you started not feeling comfortable taking a step, unless you checked first with her....[S]he wasn’t very forgiving of mistakes....” - Another co-worker: never been treated with such a lack of trust and disrespect; testified that “Supervisor 1” “... could be quite cold for weeks at a time and very exclusionary.” Both co-workers characterized “Supervisor 1”’s conduct as “harassment” and transferred out of “Office 1” because of the atmosphere. - “Supervisor 1”’s account: described relationship as “not very comfortable,” denied harassment (“I don’t think that I harassed [Ms. ‘BB’]. I don’t believe that my behavior toward her was different than my behavior toward other people.”) and acknowledged being a “perfectionist.” - Tribunal assessment: - Evidence indicates “Supervisor 1” was lacking in tact and approachability; however, demanding supervision and attention to detail is not automatically harassment. - Two witnesses in addition to Applicant testified that “Supervisor 1” went beyond normal supervision, being unduly critical and largely inaccessible. - The Tribunal finds it questionable whether the pattern of behavior constitutes actionable harassment justifying monetary compensation; difficult supervisor–supervisee relations are widespread and financial liability for such difficulties is implausible. - The treatment sustained by Applicant cannot be equated with the religious intolerance found in Mr. “F”. - The Fund’s harassment policy is commendable and binding on the Fund and its staff, but application of the policy can present difficulties. - The central question before the Tribunal is whether Applicant should be granted compensation additional to the substantial sum recommended by the Grievance Committee and accepted by the Fund; the Tribunal’s answer to that question is negative. ### Fund response and remedial measures in Ms. “BB”’s case - Actions taken by Fund management and HR: - “Office Director 1” became aware of tension, spoke with both parties, and took over direct supervision of Applicant to “avoid any kind of friction.” - “Office Director 2” worked on “people management skills” with “Supervisor 1.” - HRD Director testimony: - The Ombudsperson first alerted HRD Director to difficulties between Ms. “BB” and “Supervisor 1” and requested that Applicant be transferred because the Ombudsperson “felt that it may be affecting [Ms. ‘BB’]’s health.” - The HRD Director asked “Office Director 1” to “keep an eye on” the situation. - HRD Director attempted to arrange a staff swap between departments (unsuccessful), and later succeeded in arranging a Temporary Assignment Period (“TAP”) for Ms. “BB” in “Department 2.” - The TAP was scheduled to begin in September 2003, but was deferred when Applicant was placed on administrative leave pending the outcome of misconduct proceedings. - The TAP was arranged “...because if there are problems between staff members, regardless of whose fault it is, if one can do something to keep them apart and give the staff member who says they’re being affected sort of a chance to do something else, we do that.” - Tribunal conclusion on effectiveness: - The Fund provided opportunities to modify reporting lines and arranged a TAP as measures to address the conflict. - Despite these measures and the Grievance Committee’s recommendation of $80,000 compensation, the Tribunal did not grant additional compensation for harassment beyond that recommendation accepted by the Fund. *Source: International Monetary Fund Administrative Tribunal excerpt (j2007-4).* ### 93. The actions of the Fund in attempting to meet the difficulties encountered by Applicant ### 93. The actions of the Fund in attempting to meet the difficulties encountered by Applicant ### Fund’s responsive actions and liability mitigation - The Fund took responsive actions to meet the difficulties encountered by Applicant; these actions contrast favorably with the Fund’s ineffective action in the case of Mr. “F”. - The Fund’s decision to take corrective steps indicates recognition that a problem required a response but does not by itself establish apportionment of responsibility. - The Tribunal finds that the Fund’s responsive actions mitigate any liability it could be found to have for inappropriate supervision of Applicant. ### Standard of review for discretionary managerial decisions - The Tribunal applies the standard from the Commentary on the Statute: discretionary decisions cannot be overturned unless shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. - Decisions involving assessment of an employee’s qualifications, performance, promotions, and dismissals are primarily managerial responsibilities; the Tribunal will not substitute its judgment when managers act with deliberation and without improper motive. - The degree of judicial scrutiny may vary depending on the nature of the contested decision and the grounds alleged (e.g., procedural defects, improper motive). ### Discretionary decisions at issue - The Tribunal reviewed whether the Fund abused its discretion in: - (a) assigning Applicant a performance rating of “2” for 2002; - (b) awarding a merit increase of 3 percent for 2002 (later retroactively adjusted to 4.58 percent); and - (c) failing to promote Applicant to Grade A14. ### Performance rating (2002) - Applicant’s arguments: - Points to “objective” indicators (overtime hours, third-party reviews) and commonality of schedule “slippages” in “Office 1” to support a stronger performance assessment. - Alleged that the “2” rating was retaliatory and disproportionate given workload; sought remedy in requesting a future performance rating of “1”. - Respondent’s position: - “Office Director 1” (primary direct supervisor for 2002) considered Applicant’s performance “okay,” noting project delays and limited availability of “1” (“outstanding”) ratings in a small office. - “Office Director 2” observed a “quite deficient” and “rather late” report on a project he supervised and characterized Applicant overall for 1998-2002 as “a generally satisfactory performer, but not more than that.” - Documentary and testimonial evidence: - Applicant’s 2002 APR was largely positive but recorded reservations as to “balancing timeliness and scope/precision” and recommended “more frequent, informal progress reporting especially as regards work product schedules.” - Applicant conceded some criticism for delays was fair during Grievance Committee proceedings. - Applicant’s administrative review (August 8, 2003) did not dispute the “2” rating as such but contested the 3 percent merit increase relative to that rating. - Tribunal finding: - In the absence of clear error or improper motive, the Tribunal will defer to supervisory assessments of performance. - Applicant did not establish clear error or improper motive; the evidence reasonably supports the “2” rating. ### Merit increase (2002) - Chronology and adjustments: - Applicant was initially awarded a merit increase of 3 percent for 2002. - On February 25, 2004, the Director of Human Resources granted a retroactive adjustment, raising the increase to 4.58 percent. - Respondent’s rationale: - The 4.58 percent award was consistent with the Fund-wide average increase for staff receiving a performance rating of “2” in Applicant’s grade and salary range quartile (the third quartile of Grade A13). - The Fund selected comparators it considered similarly situated. - Applicant’s position: - Argued peers for comparison should have been colleagues in her organizational unit, which would have warranted an increase of more than 6 percent. - Noted that a 6 percent increase could not be awarded under the applicable matrix unless performance had been rated “1” (“outstanding”), a rating available to no more than 15 percent of staff in each organizational unit. - Argued that the initial 3 percent award, later “corrected,” was evidence of unfair appraisal. - Supervisory testimony on matrix and categories: - “Office Director 1” assigned Applicant a performance rating of “2C” for merit-calculation purposes (not reflected on the APR). - “Office Director 2” criticized the merit matrix design, opining that a “2C” should have correlated closer to 4 or 4.5 percent and that the adjustment to 4.58 percent placed Applicant within the “2A” performance category for her grade and quartile under the “Office 1” matrix. - Tribunal finding: - The retroactive merit increase of 4.58 percent for 2002 was a reasonable exercise of managerial discretion. - The Fund’s reconsideration and enlargement of the merit award do not demonstrate bias by supervisors. ### Non-promotion to Grade A14 - Governing rule: - Career-progression promotion governed by GAO No. 11, Rev. 4 (Grading of Positions, Assignment of Staff, and Salary Administration) (January 16, 2004), Section 5.08.1: “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.” (Identical language found in GAO No. 11, Rev. 3 (January 14, 1999), Section 5.08.1, which governed during the applicable period.) - Supervisors’ assessments: - “Office Director 2”: Applicant reached time-in-grade minimum as of October 2002 but was “absolutely not” strong enough for promotion to Grade A14; noted fierce competition in “Office 1,” quotas for noneconomists, and the importance of versatility and breadth of functions enshrined in A-14 job standards. Observed that professional certification, while not a requirement, had been strongly encouraged. - “Office Director 1”: Did not think Applicant’s performance warranted promotion; noted Applicant had agreed to obtain the professional certification at appointment but later raised doubts; viewed certification as helpful for future promotion. - Supervisors testified Applicant lacked knowledge in some core areas, limiting scope of assignments. - Applicant’s discrimination allegations: - Claimed longer tenure in “Office 1” than a male European staff member who was promoted to A14 after the 2002 review; alleged promotions had favored U.S. nationals in prior years; suggested biased preferences by “Office Director 2.” - Acknowledged the male European colleague had taken the professional certification that she lacked. - Precedents and principles: - Cited authorities conclude meeting eligibility criteria does not guarantee promotion; promotions are merit-based and require judgment by selectors. - Tribunal finding: - Complaint of non-promotion to Grade A14 is unfounded based on the evidence and managerial assessments. ### Alleged misconduct and standard of review - Applicant’s challenges to disciplinary decision: - Asserts the disciplinary decision was “invalid,” alleging HRD Director violated “separation of functions,” fair investigation, due process, and GAO No. 33 by imposing discipline for “conduct which did not constitute misconduct.” - Alleges that impermissible factors outside GAO No. 33, Section 8.02 were considered in penalty determination and that the penalty imposed was disproportionate. - Respondent’s position: - Maintains the conduct constituted misconduct under Fund regulations, discipline was properly imposed pursuant to GAO No. 33, and no substantive or procedural error occurred. - Standard of review for disciplinary decisions: - The case is the first in which the Tribunal reviews a disciplinary decision under GAO No. 33 (Conduct of Staff Members) (May 1, 1989). - The Tribunal recognizes that review of quasi-judicial disciplinary decision-making may warrant heightened scrutiny. - Precedents (UNAT and WBAT) articulate factors the Tribunal may examine in disciplinary cases, including: - (i) whether the facts on which disciplinary measures were based have been established; - (ii) whether the established facts legally amount to misconduct or serious misconduct; - (iii) whether there has been any substantive irregularity (e.g., omission of facts or consideration of irrelevant facts); - (iv) whether there has been any procedural irregularity; - (v) whether there was an improper motive or abuse of purpose; - (vi) whether the sanction is legal; - (vii) whether the sanction imposed was disproportionate to the offence; - (viii) whether there has been arbitrariness. - In disciplinary matters, the Tribunal’s review is not limited to abuse of discretion but may encompass fuller examination of issues and circumstances, including judgement whether characterization of misconduct is appropriate as a matter of law. *International Monetary Fund Administrative Tribunal (judgment in the case of Ms. “BB”).* ### 125. Mindful of the jurisprudence quoted above, the Tribunal now turns to the following ### j2007-4 - 125. Mindful of the jurisprudence quoted above, the Tribunal now turns to the following ### Key procedural questions addressed by the Tribunal - Did Applicant engage in misconduct in contravention of the Fund’s internal law? - Was Applicant accorded due process in the misconduct proceedings? - If Applicant was properly found to have engaged in misconduct, was the penalty imposed proportionate to the offence and determined in accordance with the applicable Fund regulations? ### Findings on whether Applicant engaged in misconduct - Applicant (Ms. “BB”) used access to the Fund’s confidential personnel database to retrieve information relating to the salaries and merit increases of other Fund staff while preparing her August 8, 2003 request for administrative review. - The Report of Investigation of the Fund’s Ethics Officer found Applicant made more than 100 downloads of salary and merit increase information for all Fund staff, Grades A2-B5. - Applicant accessed additional data (chrons and timesheets) relating to other staff members in her organizational unit; examples of these downloads are in the record before the Tribunal. - Relevant Fund rules and guidance cited by the Tribunal: - Rule N-6 (adopted as part of N-5 September 25, 1946; amended June 22, 1979) prohibits revealing unpublished information or using unpublished information “for private advantage, directly or indirectly, or for any interest contrary to that of the Fund as determined by the Managing Director.” - Rule N-11 (adopted as N-10 September 25, 1946) includes the affirmation that a staff member will “not use to private advantage information known to me by reason of my official position.” - GAO No. 33 (Conduct of Staff Members) (May 1, 1989), Section 7.01(vi), permits disciplinary measures for “unauthorized use or disclosure of information.” - Fund’s Code of Conduct: “You must respect and safeguard the confidentiality of information which is available or known to you by reason of your official functions.” - The Tribunal concluded that Applicant erred in believing she was entitled to use the data in preparing her request for administrative review; the downloading of large amounts of individual salary and merit increase information constituted a serious violation of staff privacy and contravened Fund internal law. - The Tribunal accepted that Applicant may have acted in good faith, but found the Fund justified in denominating her conduct as misconduct because the magnitude of downloads exceeded work assignment needs. ### Findings on due process in the misconduct proceedings - Applicant alleged violation of a rule of “separation of functions” by the HRD Director; Respondent maintained no such violation occurred and that the meeting with Applicant provided an opportunity to respond to charges after the Ethics Officer completed the fact-finding investigation. - Procedural framework considered: - Fund’s Procedural Guidelines for Conducting Inquiries Related to Allegations of Misconduct: “Based on the findings of the Ethics Officer, the Director of HRD ... decides, in accordance with General Administrative Order No. 33, on the disciplinary action, if any, to be taken.” - GAO No. 33, Section 10 (Procedures) sets out steps including designation of a “responsible official,” charge notification, staff member response (Section 10.03), inquiry (Section 10.04), and decision (Section 10.05). - The Tribunal noted GAO No. 33 contemplates a single “responsible official”; in practice the HRD Director delegated inquiry functions to the Ethics Officer (an office established in 2000) and made the decision based on the Ethics Officer’s Report, a meeting with Applicant, and Applicant’s written responses. - The HRD Director characterized her meeting as “final information gathering before I made the decision” and as ensuring she had “all of the information.” - The Tribunal found Applicant was accorded full opportunity to present her views and defend herself and found no irregularity in the procedures; no violation of “separation of functions” was found. ### Findings on proportionality and determination of penalty - Applicable disciplinary provisions: - GAO No. 33, Section 8.01 lists possible penalties: (i) written warning; (ii) formal, written, reprimand; (iii) reassignment; (iv) ineligibility for specific salary increases; (v) forfeiture of specific benefits or allowances; (vi) reduction in salary; (vii) demotion; and (viii) termination of employment. - GAO No. 33, Section 8.02 requires proportionality and lists factors to consider, including: (i) extent to which misconduct adversely reflects upon the Fund; (ii) extent to which misconduct involves intentional actions or negligence; (iii) whether misconduct involves repeated actions or behavior; and (iv) prior conduct of the staff member. - Disciplinary measures imposed on Applicant: - A “formal written reprimand” (the second least severe sanction after “written warning”). - Official notice that any future access to or acquisition or use of confidential Fund information or data “for any purpose other then carrying out your assigned Fund duties” would be grounds for immediate termination. - Monitoring of Applicant’s access to and use of confidential Fund data for a period of two years. - Requirement to undertake ethics training. - Applicant argued that the sanction was disproportionate given the Ethics Officer’s finding of “considerable good faith” and Applicant’s seeking guidance from other Fund officers. - The Tribunal concluded the disciplinary measures were proportionate to the severity of the offence and found no improper consideration of impermissible factors by the HRD Director in applying GAO No. 33. ### Role and effect of Applicant’s Declaration (January 13, 2004) - The Declaration was not treated by the Tribunal as an admission of misconduct; if it were an admission, it would have precluded contesting the misconduct decision. - Declaration paragraphs 2 and 3 state: - “2. I now know that the Fund considers the use of confidential personnel data and information by a staff member in seeking the remedies available under the Fund’s internal employment dispute resolution mechanisms to be a private use. - 3. I now know that the Fund considers seeking remedies under the Fund’s internal employment dispute resolution mechanisms to not be part of a staff member’s job function.” - The Tribunal observed paragraphs 2 and 3 differ from paragraphs beginning “I agree”; the Declaration preserved a difference between the parties on whether use of confidential data pursuing remedies is a “private use” and “not ... part of a staff member’s job function.” - The Declaration facilitated Applicant’s return to work and terminated administrative leave with pay by assuring the Fund she would not use confidential personnel data for private purposes in the future; the HRD Director considered the Declaration a mitigating factor and testified that it contributed to imposing a written reprimand rather than a harsher sanction. - The Tribunal concluded the Declaration did not constitute an admission or otherwise prevent Applicant from contesting the misconduct decision; Applicant’s allegation that the Fund breached a non-disclosure agreement in settlement negotiations was found without merit. ### Tribunal’s overall conclusion and decision - The Tribunal found the Fund’s disciplinary decisions to be appropriate given the facts. - The Administrative Tribunal of the International Monetary Fund unanimously decided that: - The Application of Ms. “BB” is denied. - Decision dated: Washington, D.C., May 23, 2007. --- _Source: https://www.imf.org/-/media/files/imfat/j2007-4.pdf_