## j2007-8 — Administrative Tribunal Judgment (November 16, 2007)

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### Case overview and parties’ positions
- Event: Administrative Tribunal of the International Monetary Fund met on November 15 and 16, 2007, composed of Judge Stephen M. Schwebel (President) and Judges Nisuke Ando and Michel Gentot (Associate Judges).
- Applicant: Mr. “DD”, former Fund staff member.
- Applicant’s contentions:
  - Subjected to harassment, a hostile work environment and retaliation by his supervisor, adversely affecting his health and career.
  - Fund failed to respond effectively to his complaints.
  - Fund improperly declined to consider his application for a vacancy; decision affected by impermissible discrimination on the basis of gender.
  - Challenges fairness of elements of the administrative review and Grievance Committee consideration and asserts retaliation for pursuing such review.
  - Remedies sought included: additional compensation for a promotion he alleges he would have received; “substantial moral and punitive damages”; payment of unreimbursed medical expenses; expungement of APR; attorney’s fees and costs.
- Respondent’s contentions:
  - Applicant was not subjected to harassment, a hostile work environment or retaliation; Fund responded appropriately to complaints.
  - No abuse of discretion or discrimination in declining to consider Applicant’s application for a vacancy.
  - Contentions about administrative review, Grievance Committee, and alleged retaliation are not properly before the Tribunal and, in any event, without merit.

### Procedural timeline and anonymity rulings
- Key dates:
  - November 7, 2006: Applicant filed an Application with the Administrative Tribunal.
  - November 9, 2006: Application transmitted to Respondent.
  - November 15, 2006: Registrar circulated a Rule IV, para. (f) notice within the Fund.
  - December 20, 2006: Respondent filed its Answer.
  - February 2, 2007: Applicant filed Reply.
  - March 16, 2007: Respondent filed Rejoinder.
- Anonymity requests and Tribunal rulings:
  - Applicant requested anonymity under Rule XXII, para. 1 for confidential personal and professional information, including health.
  - Fund had no objection; Fund sought anonymity for other persons under Rule XXII, para. 2; Applicant disputed that anonymization.
  - November 8, 2007: Tribunal ruled Applicant’s name will not be made public and other persons referenced by the Fund will not be named in the Judgment.

### Requests for documents, in camera review, and evidentiary rulings
- Applicant sought production of an outside consultant’s investigative report and “related documents” under Rule VII, para. 2(h) and Rule XVII.
- Respondent opposed on relevance and privilege grounds; Grievance Committee previously ordered documents not produced.
- October 23, 2007: Tribunal requested in camera submission of the consultant’s report.
- October 26, 2007: Respondent submitted the report for in camera inspection.
- November 8, 2007: Tribunal concluded:
  - Consultant’s findings had been fairly represented in a summary provided to Applicant’s counsel (December 12, 2002 correspondence).
  - Disclosure of the report would not be of probative value in view of the record, including the Grievance Committee transcript.
  - Applicant’s request for the report and “related documents” was denied.
- Respondent sought exclusion of portions of Applicant’s medical evidence “insofar as they are claimed to ‘establish’ medical causality”; Tribunal deferred decision on exclusion until merits.

### Request for oral proceedings
- Applicant requested oral proceedings limited to oral argument by counsel.
- Respondent argued written record and Grievance Committee transcript were sufficient.
- November 8, 2007: Tribunal concluded oral argument would not be useful given extensive briefing and available transcript of Grievance Committee oral hearings; no separate oral proceedings held.

### Employment history and supervisory conflict (factual background)
- Employment chronology and changes:
  - 1997: Applicant began Fund career as a Grade A10 staff member in “Division 1”.
  - 2000: Promoted to Grade A11.
  - May 15, 2001: Began a two-year “rotational assignment” at his grade level.
  - July 30, 2001: Applied for a Grade A12/A13 vacancy in “Division 1”.
  - July 31, 2001: Applicant describes a turning-point meeting with “Supervisor 1” alleged to include personal attacks.
  - August 1, 2001: “SPM 1” instructed Applicant to withdraw application based on a one-year expectation for the rotational assignment.
  - August 3, 2001: Applicant withdrew application.
  - Transfer planned for May 2002; subsequently effected earlier.
  - March 2002: Applicant formally transferred to “Division 1”.
  - June 10, 2002: Applicant returned to work part-time.
  - August 2002: Applicant resumed full-time status in “Division 1”.
  - September 2005: Applicant resigned to take a position with another public international organization.
- Managerial responses:
  - Applicant reported concerns to “Division 1” Chief, “SPM 1”, Ombudsperson, HSD counselor, Ethics Officer and “SPM 2”.
  - HRD Director and SPMs were involved in discussions and ultimately arranged transfer after HSD intervention.

### Medical history, treatment, and fitness-for-duty findings
- Medical events and treatment:
  - Early 2001: Applicant sought treatment from a psychologist for “social phobia, an anxiety disorder,” described as “effectively and successfully treated.”
  - October 2001: Began seeing a private psychiatrist; consulted HSD counselor in August 2001.
  - January 16, 2002: Episode of atrial fibrillation; hospitalized two days for cardiac care; subsequent hospitalizations for treatment of depression.
  - Respondent: Applicant placed on extended sick leave from approximately January 15, 2002 through mid-June 2002, with intermittent part-time employment as health permitted.
- Fitness-for-duty report (April 8, 2002) by independent medical examiner (IME):
  - IME concluded Applicant could return to work initially part-time, outside supervision of “Supervisor 1.”
  - IME summarized Applicant presented “a credible picture of a previously successful and high-achieving man who ran afoul of an extremely difficult female supervisor who mistreated him rather badly.”
  - IME noted additional stressors: a friend’s suicide and wife’s serious health scare and depression; pre-existing social anxiety “appears to have been under adequate control prior to his job change of May 2001.”
  - Prognosis: “It is likely that Mr. [“DD”] will be able to return to work at least part-time in short order, and full-time not too long after that, provided, of course, that he does not have to work in the vicinity of [“Supervisor 1”] who clearly has a toxic effect upon him.”
  - Treatment recommendation: remain in psychotherapy with medication until stable.
  - The Fund noted the transfer decision had been made prior to the fitness-for-duty assessment.

### Administrative review, consultant’s findings, and Grievance Committee Recommendation
- Administrative review timeline:
  - August 8, 2002: Applicant sought administrative review under GAO No. 31 alleging violations of the Policy on Harassment.
  - September 12, 2002: Fund counsel confirmed retention of outside consultant; Terms of Reference included assessment of harassment, retaliation, and effects on Applicant’s career and health.
  - Consultant’s principal findings (summarized to Applicant’s counsel before report submission):
    - No evidence of gender discrimination in application of the one-year rule.
    - Did not find the supervisor/subordinate relationship was harassing or in violation of Fund rules.
    - Did not find supervisor retaliated against Applicant for expressing desire to transfer.
    - Found Applicant’s health suffered in the last 16-18 months but could not attribute causation solely to workplace relationships.
    - Noted management lapse in attention to the deteriorating relationship.
    - Stated issues seemed more appropriate for informal resolution than legal adjudication (Letter from Fund’s counsel to Applicant’s counsel, December 12, 2002).
- Grievance Committee:
  - March 12, 2004: Applicant filed a Grievance with the Grievance Committee.
  - January 3, 2005: Committee ordered it would not consider information or argument relating to “medical causality” (deemed properly before Workers’ Compensation Claim Administrator); affidavit of Applicant’s treating psychologist stricken.
  - July 25, 2006: Committee Recommendation concluded:
    - Mr. “DD” had not been subjected to a hostile work environment.
    - Fund did not fail to take timely and effective action to remove Applicant from supervision of “Supervisor 1”.
    - Fund’s rules relating to vacancy applications were applied “even-handedly and in a non-discriminatory manner.”
    - Recommended denial of the Grievance.
  - August 8, 2006: Fund management accepted the Committee’s recommendation.
  - January 12, 2004: Administrative review considered exhausted (fund’s notification dated January 12, 2004).

### Tribunal’s legal framework and precedents applied
- Policies and standards cited:
  - Policy on Harassment (Staff Bulletin 99/15, June 18, 1999, revised July 21, 1999): “Harassment is any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment.”
  - Policy examples of intimidation include degrading public tirades, deliberate insults related to competence, threatening comments, malicious and unsubstantiated complaints.
  - Code of Conduct (1998) principles: “Courtesy and respect” and “Conflict resolution” expectations for managers.
  - Policy on Harassment — freedom from reprisal: reprisal against complainants is unacceptable and may constitute misconduct.
- Precedent cases referenced:
  - Mr. “F”: awarded $100,000 for Fund’s failures to take effective measures against workplace religious intolerance and harassment.
  - Ms. “BB”: Tribunal distinguished demanding supervision from harassment and found mitigating effect where Fund took remedial actions.
  - D’Aoust (No. 2) and other judgments regarding time-in-grade rules, eligibility, and exceptions.

### Tribunal’s factual findings and legal conclusions
- Harassment and hostile work environment:
  - Tribunal found Applicant perceived being belittled and experienced distress, but Applicant failed to prove Supervisor’s conduct amounted to harassment or created a hostile work environment under Fund internal law.
  - Tribunal characterized the situation as a “severe clash of personalities,” with Applicant “hypersensitive” to direct supervision and Supervisor “insensitive to his sensitivities.” Incompatibility alone did not constitute harassment.
- Management response and timing of transfer:
  - Consultant found Applicant made concerns known to management and that there was “a rather significant lapse in management attention.”
  - Tribunal regretted Applicant was not moved months earlier but concluded the Fund is not liable for failing to transfer Applicant sooner, given workplace frictions, Applicant’s limited disclosure of psychological problems, and considerations of efficiency and Applicant’s capacities and health.
- Medical evidence and causation:
  - Tribunal allowed medical reports to be considered and weighed for probative value; reports recounting Applicant’s perceptions rather than objective physician evaluations would be discounted as not objectively bearing on causality.
  - Tribunal distinguished its role from the Workers’ Compensation Claim Administrator: Workers’ Compensation determines compensability under GAO No. 20; Tribunal determines whether Fund violated internal law by impermissible harassment or failure to take effective measures.
  - Tribunal accepted Applicant experienced severe health impacts but left open the weight to be given to medical evidence for liability and noted Workers’ Compensation could reach a different conclusion on work-relatedness.
- Discrimination and eligibility for vacancy:
  - Tribunal concluded Fund did not abuse its discretion in requesting Applicant withdraw his July 2001 application; decision was not tainted by impermissible gender discrimination.
  - Statistics or demographic outcomes alone did not establish discrimination.
- Procedural fairness, administrative review and Grievance Committee:
  - Tribunal found engagement of outside consultant and conduct of administrative review proper; Applicant was not prejudiced by process or by HRD Director not issuing a decision.
  - Tribunal denied Applicant’s contentions regarding Grievance Committee evidentiary rulings and found no ground to give the Committee’s proceedings less weight than ordinarily accorded.
- Retaliation claim and exhaustion:
  - Tribunal applied Article V, Section 1 exhaustion requirement and the standard for admissibility of later-arising claims where closely linked and given some prior review.
  - Tribunal found Applicant’s retaliation claim sufficiently linked to underlying employment challenge to permit adjudication.
  - Tribunal found Applicant did not substantiate a claim of retaliation; no evidence that post-return difficulties flowed from pursuit of his Grievance.
- Remedies and final decision:
  - Tribunal denied Applicant’s Application.
  - Signatories: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Celia Goldman, Registrar.
  - Judgment date/location: Washington, D.C., November 16, 2007.

*Administrative Tribunal of the International Monetary Fund — Judgment (November 16, 2007).*

### Introduction

### j2007-8 - Introduction

### Case overview and parties' positions
- On November 15 and 16, 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 Mr. “DD”, a former staff member of the Fund.
- Applicant’s contentions:
  - He was subjected to harassment, a hostile work environment and retaliation by his supervisor, which violated Fund rules and adversely affected his health and career.
  - The Fund failed to respond effectively to his complaints.
  - The Fund improperly declined to consider his application for a vacancy, a decision he asserts was affected by impermissible discrimination on the basis of his gender.
  - He challenges the fairness of elements of the administrative review and Grievance Committee consideration of his complaint and asserts retaliation for pursuing such review.
- Respondent’s contentions:
  - Applicant was not subjected to harassment, a hostile work environment or retaliation by his supervisor and the Fund responded appropriately to his complaints.
  - The Fund did not abuse its discretion or discriminate in declining to consider Applicant’s application for a vacancy that arose a few months after he had assumed the position in which he alleges he experienced harassment.
  - Applicant’s contentions regarding the administrative review and Grievance Committee consideration, and alleged retaliation for pursuing channels of review, are not properly before the Tribunal and, in any event, are without merit.

### Procedural timeline
- November 7, 2006: Mr. “DD” filed an Application with the Administrative Tribunal.
- November 9, 2006: The Application was transmitted to Respondent.
- November 15, 2006: Pursuant to Rule IV, para. (f), the Registrar circulated within the Fund a notice summarizing the issues raised in the Application.
- December 20, 2006: Respondent filed its Answer.
- February 2, 2007: Applicant submitted his Reply.
- March 16, 2007: The Fund’s Rejoinder was filed.

### Requests for anonymity and Tribunal decisions
- Applicant requested anonymity pursuant to Rule XXII, para. 1 on the ground that his case involves “confidential personal and professional information, including information regarding his health.”
- The Fund had the opportunity to respond and stated it had no objection to Applicant’s request; the Fund also sought anonymity for other persons under paragraph 2 of Rule XXII.
- Applicant disputed the Fund’s request to anonymize other persons, arguing that determinations about Fund officials’ performance should be public record or that unfounded accusations would protect officials’ reputations.
- November 8, 2007: The Administrative Tribunal decided:
  - Applicant’s name will not be made public, consistent with precedent and in light of the nature of the case and evidence, including information relating to Applicant’s health and allegations of mistreatment by his supervisor.
  - Other persons referenced by the Fund will not be named in the Judgment, consistent with the Tribunal’s usual practice.

### Request for production of consultant’s investigative report and related documents
- Applicant requested production of “the investigative report and related documents” prepared by an outside consultant engaged by the Fund following Applicant’s request for administrative review, pursuant to Rule VII, para. 2(h) and Rule XVII.
- Respondent opposed production on grounds that:
  - The documents are irrelevant because they were prepared after the impugned actions were taken.
  - The documents are protected by “work product” and related privileges.
- The Grievance Committee had previously ordered that the documents not be produced to Applicant.
- Precedent (Mr. "F", IMFAT Judgment No. 2005-1 (March 18, 2005)):
  - The Tribunal found merit in shielding a consultant’s report produced after a decision from disclosure as not relevant to the decision.
  - The Tribunal examined the report in camera to decide disposition of the request.
- October 23, 2007: Pursuant to paragraph 2 of Rule XVII, the Tribunal requested Respondent submit the consultant’s report for in camera review.
- October 26, 2007: Respondent submitted the document for in camera inspection.
- November 8, 2007: Following in camera review, the Tribunal concluded:
  - The consultant’s findings had been fairly represented in a summary provided to Applicant and his counsel by the Fund’s counsel in correspondence of December 12, 2002.
  - In view of the record before the Tribunal, in particular the transcript of the oral hearings of the Grievance Committee, disclosure of the report would not have been of probative value to Applicant.
  - Accordingly, Applicant’s request for the report and “related documents” was denied.

### Requests and rulings on medical-evidence-related material
- Respondent requested that portions of Applicant’s brief and supporting exhibits be “wholly disregarded insofar as they are claimed to ‘establish’ medical causality,” specifically:
  - The fitness-for-duty report of the independent medical examiner (psychiatrist).
  - Consultation notes of the Health Services Department psychologist.
  - The affidavit of Applicant’s treating psychologist that the Grievance Committee had excluded from its record but which Applicant submitted with his Tribunal pleadings.
- The question of what weight to give evidence relating to Applicant’s medical condition in deciding his harassment claim has been extensively briefed and is integral to the case.
- November 8, 2007: The Administrative Tribunal decided to defer its decision on Respondent’s request until consideration of the merits of the case.

### Request for oral proceedings and Tribunal decision
- Applicant requested oral proceedings pursuant to Rule VII, para. 2(i) and Rule XIII, para. 1, specifying that he sought only to present oral argument through counsel and not an evidentiary hearing.
- Applicant’s rationale: the case raises “serious and substantial issues about the interpretation and implementation of important Fund policies and practices” that would benefit from oral argument.
- Respondent’s position: the written record and pleadings are sufficient; the case does not raise issues that are “systemic or unusually far-reaching”; therefore oral proceedings should not be held.
- Rule XIII, para. 1: “[o]ral proceedings shall be held if ... the Tribunal deems such proceedings useful.” Paragraph 6 allows limiting oral proceedings to oral arguments where the written evidentiary record is adequate.
- November 8, 2007: The Administrative Tribunal concluded that holding oral proceedings for the purpose of hearing oral arguments of counsel would not be useful because:
  - The legal issues were extensively briefed in the pleadings.
  - The Tribunal has a transcript of the Grievance Committee’s oral hearings, at which numerous witnesses testified, including Applicant, his former supervisor, senior officials of Applicant’s Department, the Director of Human Resources, a physician of the Joint Bank-Fund Health Services Department, Applicant’s spouse, and current and former staff members who provided evidence relevant to the Committee’s consideration.
  - The Tribunal is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it (citing Mr. M. D’Aoust, IMFAT Judgment No. 1996-1 (April 2, 1996), para. 17).

*Administrative Tribunal of the International Monetary Fund — Introduction (j2007-8).*

### 17.      The relevant factual background may be summarized as follows.

### 17.      The relevant factual background may be summarized as follows.

### Employment history and assignment changes
- Applicant (Mr. “DD”) began his career with the Fund in 1997 as a Grade A10 staff member in “Division 1”.
- In 2000, Applicant was promoted to Grade A11.
- In May 2001, following the Department’s reorganization, several new supervisor/supporting positions were created.
- Applicant applied for and was selected for one of the new supporting positions, a two-year “rotational assignment” carrying his current grade level. (Tr. 155.)
- Applicant formally began the new position on May 15, 2001.

### Supervisory relationship and immediate conflict
- Applicant reported initial positive impressions of “Supervisor 1” but experienced an early public incident in which he was “put ... on the spot in front of all [his] colleagues.” (Tr. 1019.)
- In July 2001 a Grade A12/A13 vacancy arose in “Division 1”; Applicant applied for the vacancy on July 30, 2001 and forwarded a copy to “Supervisor 1.”
- Applicant’s July 31, 2001 meeting with “Supervisor 1” is described by Applicant as a turning point; he testified that she became angry and launched a “personal attack,” allegedly saying: “You have problems that are going to stop you from being successful, no matter what road you take,” and “I can’t fathom how your mind operates.” (Tr. 1032-35.)
- Applicant testified that he felt “devastated” and “stunned” by the exchange and that thereafter “Supervisor 1” became “extremely cold.” (Tr. 1044-45; Tr. 1064-65.)
- “Supervisor 1” characterized the July 31 meeting as “positive” and recalled encouraging Applicant to explore the vacancy; she also noted concerns about his “managing multiple tasks” and “juggling projects and meeting deadlines.” (Tr. 757; Tr. 770; Tr. 763-64.)

### Internal advice and decision to withdraw application
- At the end of July 2001 Applicant spoke with “Supervisor 2” about the vacancy; “Supervisor 2” advised staying in the current position given expectations people “stay in their position for at least one year” and suggested Applicant speak with the Senior Personnel Manager (“SPM”). (Tr. 162-63; Tr. 169-70.)
- On August 1, 2001 “SPM 1” met with Applicant and instructed him to withdraw his application for the vacancy on the basis that the two-year rotational assignment was to be served at least one year. (Tr. 67.)
- On August 3, 2001, Applicant withdrew his application citing “SPM 1”’s request.

### Reporting of concerns and managerial responses
- Applicant reported concerns about the working relationship with “Supervisor 1” to the “Division 1” Chief and to “SPM 1”; “SPM 1” did not regard Applicant’s report as supervisory harassment but conveyed Applicant’s concerns to “Supervisor 1.” (Tr. 72; Tr. 87-88; Tr. 74.)
- Applicant sought assistance from the Fund’s Ombudsperson and from a counselor in the Health Services Department in August 2001. (Tr. 1104-05.)
- In October 2001 “Supervisor 2” became “SPM 2”; Applicant told “SPM 2” he was having a “very difficult time” with “Supervisor 1” and that he felt “belittled” and that his work was “not being fully appreciated.” (Tr. 191; Tr. 199.)
- “SPM 2” advised Applicant to seek consultation with the Health Services Department and to clarify expectations actively. (Tr. 192-93.)

### HR decisions and planned transfer
- Following October 2001 discussions, “SPM 2” raised Applicant’s concerns with “Supervisor 1,” alerted the “Division 1” Chief and the HRD Director, and—before the end of 2001, in consultation with the HRD Director—decided that Applicant would be transferred as of May 2002 to “Division 1.” (Tr. 194; Tr. 197; Tr. 201; Tr. 234.)
- On January 4, 2002 “SPM 2” met with Applicant to inform him that the transfer would take place in May 2002, when he had completed a full year in the new position. Applicant testified he became increasingly emotional and cried uncontrollably during the meeting; he described being “at the end of [his] rope” and that his self-confidence had been “... completely eroded.” (Tr. 1111-13; Tr. 1120.)
- “SPM 2” testified that he did not recall the meeting being especially emotional or that Applicant had cried. (Tr. 236.)

### Ethics Officer contact and office atmosphere
- In October 2001 Applicant met with the Fund’s Ethics Officer about a concern that his email was being improperly accessed; Applicant did not ask the Ethics Officer to investigate alleged harassment, but mentioned concerns about the work relationship with “Supervisor 1.” (Tr. 564.)
- The Ethics Officer reported his impression that Applicant “believed, and he may well have sincerely believed, that she had demeaned him” while “Supervisor 1” characterized Applicant as “a problem child across the board ... took up an inordinate amount of her time and was complaining a great deal and not getting the job done and didn’t have a clue about the substance of the job....” (Tr. 564; Tr. 628.)
- Applicant testified that his contact with the Ethics Officer had a “chilling” effect and that thereafter colleagues would not say hello to him; he testified overhearing “Supervisor 1” allegedly remark: “[M]y incompetent assistant is having me investigated.” (Tr. 1098-99; Tr. 1101.)

### Medical history, treatment, and workplace effects
- Applicant had sought treatment in early 2001 from a psychologist for “social phobia, an anxiety disorder” which the psychologist described as “effectively and successfully treated.” (Psychologist’s affidavit of October 22, 2003.)
- The psychologist’s affidavit states that “By August, 2001, Mr [“DD”]’s clinical picture began to deteriorate precipitously,” describing reported harassment including “severe and undeserved public criticism, the imposition of impossible deadlines, and the persistent refusal to provide him any coaching or support in his new developmental position.” The psychologist opined that workplace stress contributed to Applicant’s cardiac event of January 2002 and “significant workplace stress ... caused his severe clinical depression.” (Psychologist’s affidavit of October 22, 2003.)
- Applicant consulted a counselor at the Joint Bank-Fund Health Services Department (“HSD”) in August 2001; HSD notes of August 30, 2001 record that Applicant perceived harassment by his new supervisor and planned to seek a transfer. (HSD counselor’s notes.)
- On January 15, 2002 Applicant reported “increasing depression over the past several months, which he attributed primarily to his deteriorating relationship with his manager” and sought guidance on coping and treatment. HSD notes record: “No one in the office knows he is in treatment.” (HSD counselor’s notes.)
- Applicant began seeing a private psychiatrist in October 2001. (Tr. 1108.)
- On January 16, 2002 Applicant suffered an episode of atrial fibrillation (a condition he had experienced the previous September), was hospitalized for two days for cardiac care, and the following week began hospitalizations for treatment of depression.
- Respondent states Applicant was placed on extended sick leave from approximately January 15, 2002 through mid-June 2002, with intermittent periods of part-time employment as health permitted.
- Applicant returned briefly to work under “Supervisor 1” in February 2002; on February 25, 2002 he met with an HSD physician and expressed that his work relationship with “Supervisor 1” was affecting his health. The physician brought the issue to the HRD Director’s attention on the following day, and the HRD Director requested that Applicant be transferred immediately to “Division 1” for health reasons. (Tr. 1145-46; Tr. 1649; Tr. 1660.)
- After consultation, HRD decided to make the transfer immediately and proposed a fitness-for-duty examination by an independent medical advisor before assigning Applicant to new duties. (March 5, 2002 email from HRD Director to HSD physician.)

*From the Tribunal’s factual background.*

### 45.      Applicant formally transferred to “Division 1” as of March 2002.

### 45. Applicant formally transferred to “Division 1” as of March 2002

### Fitness-for-duty assessment and medical findings
- The fitness-for-duty report of April 8, 2002, prepared by an independent medical examiner (“IME”), concluded:
  - Mr. “DD” could return to work, initially on a part-time basis, outside the supervision of “Supervisor 1.”
  - The IME summarized that Mr. [“DD”] presented “a credible picture of a previously successful and high-achieving man who ran afoul of an extremely difficult female supervisor who mistreated him rather badly.”
  - Additional stressors included a friend’s suicide and his wife’s serious health scare and depression, to which he responded with “acute symptoms of depression and exacerbation of his pre-existing social anxiety.”
  - The IME noted his pre-existing social anxiety “appears to have been under adequate control prior to his job change of May 2001, at least by his own report,” and that “no sign of these was elicited during my examination.”
  - Prognosis: “It is likely that Mr. [“DD”] will be able to return to work at least part-time in short order, and full-time not too long after that, provided, of course, that he does not have to work in the vicinity of [“Supervisor 1”] who clearly has a toxic effect upon him.”
  - Treatment recommendation: “He should remain in psychotherapy with medication until it is clear to him and his therapist that his life is stable and back on track and there are no more important issues to deal with.”
- The Fund notes the decision to transfer Applicant had been made prior to the fitness-for-duty assessment.

### Return to work and workplace supervision
- Return-to-work timeline and status:
  - Applicant returned to work on a part-time basis on June 10, 2002.
  - Applicant resumed full-time status in August 2002.
  - As of April 8, 2002, Mr. “DD” returned to work in “Division 1”. (Tr. 472.)
  - Applicant continued to serve in “Division 1” until September 2005, when he resigned to take a position with another public international organization.
- “Division 1” Chief’s actions and observations:
  - Initially asked HSD what kind of assignments to give him.
  - Testified that, from a health perspective, Mr. “DD” seemed “much improved” (Tr. 507) and “seems a little more settled and a little more focused.” (Tr. 474-75.)
  - Chose assignments to build his confidence and to accommodate his medical-related absences. (Tr. 530.)
  - Provided extra structure in supervising him. (Tr. 512-13.)
- Applicant’s view: testified that assignments after returning to “Division 1” were not consistent with his grade level or specialized experience. (Tr. 1131.)
- Applicant reported several additional hospitalizations during 2002 for treatment of depression. (Tr. 1802-11.)

### Administrative review, investigation, and findings
- Administrative review timeline:
  - August 8, 2002: Applicant sought administrative review pursuant to GAO No. 31, alleging conduct violative of the Policy on Harassment and other Fund internal law.
  - August 19, 2002: HRD Director indicated intention to engage an independent outside investigator.
  - September 12, 2002: Fund counsel confirmed retention of an outside consultant to conduct an inquiry; Terms of Reference required assessment of whether Mr. [“DD”] was the subject of harassment and retaliation per IMF policies and whether alleged conduct affected him “in terms of his IMF career as well as his health.”
- Consultant’s principal findings (as summarized to Applicant’s counsel before report submission):
  - No evidence of discrimination based on gender in application of the one-year rule governing eligibility for vacancies.
  - Consultant did not find the supervisor/subordinate relationship was harassing or in violation of Fund rules.
  - Consultant did not find that the supervisor retaliated against Mr. “DD” as a result of his expressed desire to transfer from his position.
  - Consultant also found:
    - “... that Mr. [“DD”]’s health has suffered in the last 16-18 months, but [the consultant] cannot attribute causation solely to his workplace relationships or working environment.... [and] it was beyond the scope of [the consultant’s] review to determine whether or to what extent Mr. [“DD”]’s mental and physical health problems were directly caused by any one factor;”
    - The supervisor “... was not as sensitive to Mr. [“DD”]’s concerns and needs as hindsight would suggest. She may not have styled her feedback in ways that would optimize Mr. [“DD”]’s ability to hear and respond positively. However, it is also entirely possible that Mr. [“DD”] was strongly predisposed against his new supervisor.... this situation involved two individuals with some fundamental incompatibilities who were placed together in a new and untested function;”
    - “... throughout the period of his complaint, Mr. [“DD”] made his concerns about [“Supervisor 1”] and his opinion about their working relationship known to [Department] management. [The consultant] found a rather significant lapse in management attention to the deteriorating relationship between [“Supervisor 1”] and Mr. [“DD”], about which earlier intervention might have prevented the situation now faced.”
  - Consultant’s view: issues raised “would seem more appropriate for informal resolution than for legal adjudication.” (Letter from Fund’s counsel to Applicant’s counsel, December 12, 2002.)
- Settlement and exhaustion of administrative review:
  - Applicant and counsel met with the consultant; settlement negotiations continued throughout 2003.
  - May 8, 2003: Fund indicated administrative review had not been formally concluded and a negotiated settlement remained possible.
  - January 12, 2004: Fund concluded parties had reached an impasse and formally notified Applicant’s counsel that administrative review pursuant to GAO No. 31 was exhausted.

### Grievance Committee proceedings and Recommendation
- March 12, 2004: Applicant filed a Grievance with the Fund’s Grievance Committee.
- Committee process:
  - Proceedings based on oral hearings and party briefs.
  - Committee bifurcated consideration of liability and damages.
  - January 3, 2005: Committee ordered it would not consider “any information or argument” relating to “medical causality,” deeming that issue properly before the Fund’s Workers’ Compensation Claim Administrator; affidavit of Applicant’s treating psychologist was stricken.
- July 25, 2006: Grievance Committee Recommendation and Report concluded:
  - Mr. “DD” had not been subjected to a hostile work environment.
  - Fund did not fail to take timely and effective action to remove Mr. “DD” from supervision of “Supervisor 1”.
  - Fund’s rules relating to vacancy applications had been applied “even-handedly and in a non-discriminatory manner.”
  - Recommendation: Denial of Mr. “DD”’s Grievance on the ground he had not shown that decisions he challenged constituted an abuse of discretion by the Fund.
- August 8, 2006: Deputy Managing Director notified Applicant that Fund management accepted the Committee’s recommendation.
- November 7, 2006: Mr. “DD” filed his Application with the Administrative Tribunal.

### Parties’ principal contentions and remedies sought
- Applicant’s principal contentions (summarized):
  1. Supervisor harassed and retaliated against Mr. “DD” and subjected him to a hostile work environment in violation of Fund policies.
  2. Fund failed to take timely and effective action in response to complaints about “Supervisor 1.”
  3. Complaints of significant workplace stress warranted prompt consideration and effective management intervention regardless of whether treatment amounted to actionable harassment.
  4. Medical evidence is relevant, probative and admissible with respect to claim of harassment.
  5. Fund wrongfully declined to consider Applicant’s application for a vacancy in “Division 1”, discriminating on the basis of gender.
  6. Administrative review was unfair, unduly protracted and caused further harm; Grievance Committee Chairman and Fund counsel engaged in unfair conduct; Applicant faced retaliation for pursuing review channels.
  7. Relief sought includes:
     - the additional compensation Applicant would have received had he been promoted to the “Division 1” vacancy in 2001;
     - “substantial moral and punitive damages” for psychological, physical and other intangible injuries caused by alleged discriminatory treatment, harassment, hostile work environment and retaliation, and management’s failure to take timely and effective action;
     - “substantial moral and punitive damages” for the Fund’s “mishandling” of the administrative review;
     - payment of unreimbursed medical expenses;
     - expungement of APR prepared by allegedly harassing supervisor;
     - attorney’s fees and costs.
- Respondent’s principal contentions (summarized):
  1. Applicant was not subjected to harassment or a hostile work environment by “Supervisor 1”; no retaliation for his application for a vacancy outside her supervision; “Supervisor 1”’s “management style” was not inappropriate.
  2. Fund responded appropriately to Applicant’s complaints.
  3. No discrimination on the basis of gender in applying the “one-year rule.”
  4. Tribunal should disregard portions of Applicant’s brief and exhibits that “establish” medical causality; Tribunal has no basis to review medical causality.
  5. Complaints about unfair treatment in administrative review and Grievance Committee proceedings, and retaliation for pursuing channels of review, are not properly before the Administrative Tribunal and, in any event, without merit.
  6. Applicant is not entitled to any of the remedies he seeks.

### Legal framework applied by the Tribunal
- Harassment definition from the Fund’s Policy on Harassment:
  - “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 on Harassment,” Staff Bulletin 99/15 (Harassment – Policy and Guidance to Staff) (June 18, 1999, revised July 21, 1999).)
- Intimidation examples in the Policy:
  - degrading public tirades by a supervisor or colleague;
  - deliberate insults related to a person’s personal or professional competence;
  - threatening or insulting comments, whether oral or written—including by e-mail;
  - deliberate desecration of religious and/or national symbols;
  - malicious and unsubstantiated complaints of misconduct, including harassment, against other employees.
- Conduct not considered harassment per the Policy:
  - “... 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.” 
- Code of Conduct (1998) excerpts:
  - “Courtesy and respect”: staff should treat colleagues with courtesy and respect, without harassment, or physical or verbal abuse, and avoid behavior that may create an atmosphere of hostility or intimidation.
  - “Conflict resolution”: managers must make themselves available to staff to raise concerns in confidence and deal with situations in an impartial and sensitive manner; managers should create an atmosphere in which staff feel free to use institutional channels for conflict resolution without fear of reprisal.
- Policy on Harassment — freedom from reprisal:
  - Reprisal against anyone who files a complaint in good faith is unacceptable and constitutes misconduct subject to disciplinary action.
  - Officials of HRD will check with complainants to ensure no adverse actions have been taken as a result of filing a complaint.
- Disciplinary consequence reminder in Policy:
  - “... Employees should be aware that all forms of harassment may constitute misconduct, providing a basis for disciplinary action up to and including termination of employment (see General Administrative Order No. 33, Conduct of Staff Members, Section 8, Disciplinary Measures).”

*Administrative Tribunal / Grievance Committee materials.*

### 68.      In Mr. “F”

### In Mr. “F”

### Harassment as discrimination and Tribunal precedent
- The Fund’s Discrimination Policy, p. 5, explains that harassment can manifest itself as a form of discrimination: “Harassment, unfair treatment, abuse of power, and favoritism are also separate from discrimination, but they can all become discriminatory if they develop into a pattern and systematically address certain individuals or groups of individuals and have an impact on employees’ performance, development, career opportunities, and career progress.”
- In Mr. “F”, the Tribunal found that the Section where Mr. “F” worked “suffered from an atmosphere of religious bigotry and malign personal relations among certain of its members, and that he in particular suffered accordingly.” The Tribunal further concluded that Mr. “F” “felt, and had reason to feel, that he was the object of hostility on the part of certain of his colleagues because his religion was different from theirs,” and that “an atmosphere of religious animosity was tantamount to harassment that adversely affected the work performance and perhaps health of Mr. ‘F’.”
- The Tribunal awarded Mr. “F” financial compensation in the sum of $100,000 for the Fund’s failures (a) “to take effective measures in response to 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, Para. 2.)

### Distinction between discriminatory harassment and non-discriminatory harassment
- In Judgment No. 2007-4 (Ms. “BB”), para. 77, the Tribunal distinguished harassment “linked to religious intolerance as the Tribunal found in the case of Mr. ‘F’, which ... is a form of discrimination prohibited by the Fund’s internal law as well as by universally accepted principles of human rights,” from “harassment without discriminatory animus,” which was the nature of the allegations in Ms. “BB”.
- The Tribunal in Ms. “BB” emphasized the Fund’s Harassment Policy (Staff Bulletin No. 99/15) and noted practical difficulties in applying the policy. It concluded that demanding or critical supervision is not necessarily harassment: “... the fact that a supervisor is demanding, even in respect of minor detail, is not to be equated with harassment.” (Ms. “BB”, paras. 88–89.)
- In Ms. “BB”, the Tribunal took account of the Fund’s remedial actions (Office Director taking over direct supervision; HRD Director arranging a temporary assignment) and concluded those responsive actions “mitigate[d] any liability [the Fund] could be found to have for the inappropriate supervision of Applicant.” (Ms. “BB”, para. 93.)

### Factual summary of Mr. “DD”’s harassment claim
- Applicant alleges the onset of harassment in July 2001 after applying for a vacancy in “Division 1,” dating the harassment to the July 31 meeting with “Supervisor 1”.
- Alleged conduct by “Supervisor 1” included: exposing Applicant to embarrassment in meetings, criticizing his work in front of others, imposing unreasonable assignments, providing inadequate support, belittling his competence, humiliating him in front of coworkers, and giving unbalanced performance feedback.
- No corroborating testimony from “others” supported Applicant’s claim that he was publicly criticized in meetings.
- Applicant reported perceptions and distress contemporaneously in late July/early August 2001 to “SPM 1” and “Supervisor 2,” and in August 2001 to the Health Services counselor, the Ombudsperson, and the “Division 1” Chief, and in October 2001 to the Ethics Officer.

### Evidence on supervisory style and workplace context
- Witness testimony characterized “Supervisor 1” as direct, results-oriented, and sometimes blunt:
  - “... she’s known as somebody who is highly results oriented. She has a reputation of being particularly adept at process, work on processes, streamlining and so on.... Some people find her quite blunt; I mean what you see is what you get and so, you know, she is pretty outspoken. ...” (Tr. 141-43.)
  - A former colleague: “... she was direct in telling people where they stood, what was expected of them, what she wanted them to do or what they needed to do to succeed. And I think that was something that she worked fairly tirelessly at to make sure that she did things in that way. And I suspect that that was unusual.” (Tr. 1429.)
- Several witnesses appreciated her coaching abilities and managerial advice; some complaints about her supervision were said to arise from structural changes associated with her management.
- Some witnesses testified they had never heard “Supervisor 1” use offensive language about staff. (Tr. 331.)
- Applicant asserted that “Supervisor 1” reserved rough treatment for one-on-one closed-door meetings. (Tr. 1123.)

### Applicable Fund policies and definitions
- The Fund’s Policy on Harassment defines prohibited “intimidation” to include “behavior directed at isolating or humiliating an individual or a group,” for example, “deliberate insults related to a person’s personal or professional competence.” (Policy on Harassment, para. 4.)
- Policy on Harassment, para. 14, provides that performance feedback “should be made in a reasonable and constructive manner and should not be used as retaliation.”
- Policy on Harassment, para. 3, defines harassment as conduct that “...unreasonably interfere[s] with work or create[s] an intimidating, hostile, or offensive work environment?”
- Policy on Harassment, para. 18, expects supervisors to “stop[ ] harassment in the areas under their supervision.”
- The Code of Conduct, para. 19, requires managers to be available to staff who wish to raise concerns and to deal with such situations in an “impartial and sensitive” manner.

### Tribunal’s analysis and conclusion in Mr. “DD”
- The Tribunal found that Applicant perceived himself to be belittled and unappreciated and that he experienced distress, but concluded he failed to prove that his supervisor’s conduct was tantamount to harassment or that a hostile work environment was created.
- The Tribunal characterized the situation as a “severe clash of personalities,” with Applicant “hypersensitive” to a direct and critical supervisory manner and the supervisor “insensitive to his sensitivities.” The Tribunal held that such incompatibility, while difficult, is not unusual and does not, on its own, constitute harassment under the Fund’s internal law.
- The Tribunal therefore concluded that Mr. “DD” was not subjected to harassment in contravention of the Fund’s internal law and did not establish that his supervisor’s conduct “...unreasonably interfere[d] with work or create[d] an intimidating, hostile, or offensive work environment.” (Policy on Harassment, para. 3.)

### Fund’s response to complaints: precedent and case-specific actions
- In Mr. “F”, the Tribunal found “no evidence in the record that Fund supervisors took effective action” to deal with the impermissible work environment, noting that although a senior economist rebuked expressions of religious hostility, “the atmosphere of hostility persisted after his departure,” and supervisors did not “move vigorously, or indeed moved at all, to investigate Mr. ‘F’’s complaints” or discipline staff. The Tribunal awarded compensation for that failure.
- In Ms. “BB”, by contrast, the Fund took responsive actions (Office Director assuming direct supervision; HRD Director arranging temporary assignment) that the Tribunal found contrasted favorably with the ineffective actions in Mr. “F” and that mitigated the Fund’s liability.
- In Mr. “DD”:
  - “SPM 1” promptly reported Applicant’s early August 2001 concerns to “Supervisor 1” to create a discussion between them.
  - In October 2001, Applicant raised acute concerns with “SPM 2” and requested reassignment; “SPM 2” relayed concerns to “Supervisor 1” and the HRD Director.
  - The HRD Director became aware “toward the end of 2001” of the work-relationship problems and of Applicant’s request to be reassigned, but she testified she did not speak to Applicant or “Supervisor 1” about the work relationship after becoming aware of the concerns. She explained that she viewed the difficulties as common when staff move into new positions and that rapid reassignment was not necessarily appropriate for long-term development. (Tr. 1635; Tr. 1641; Tr. 1643; Tr. 1651-52; Tr. 1663.)

_Tribunal judgments and Fund policies as cited in the case materials._

### 98.      It is further recalled that the outside consultant engaged to review Applicant’s complaint

### j2007-8 — Tribunal consideration of Applicant “DD”’s complaint and related medical evidence

### Findings on notice, management response, and timing of transfer
- An outside consultant engaged to review Applicant’s complaint found that “... throughout the period of his complaint, Mr. [“DD”] made his concerns about [“Supervisor 1”] and his opinion about their working relationship known to [Department] management.” (Letter from Fund’s counsel to Applicant’s counsel, December 12, 2002.)
- The consultant also found “a rather significant lapse in management attention to the deteriorating relationship between [“Supervisor 1”] and Mr. [“DD”] ....” (Letter from Fund’s counsel to Applicant’s counsel, December 12, 2002.)
- Applicant asserted that his “... complaints of significant workplace stress warranted prompt consideration and effective intervention by management regardless of whether [“Supervisor 1”]’s treatment amounted to actionable harassment in its own right,” and that senior officials “disregarded Mr. [“DD”]’s requests for assistance until he became professionally and personally incapacitated by the effects of his work environment.”
- Timeline of key events:
  - Applicant voiced complaints as early as the summer of 2001.
  - Senior Personnel Manager (“SPM 2”) referred Applicant to the Health Services Department in October 2001.
  - Applicant was not transferred outside the supervision of “Supervisor 1” until March 2002.
  - Applicant testified that, as of January 15, 2002, no one in the office knew he was in psychiatric treatment, though they knew of the October 2001 referral. (Tr. 1847-48.)
  - “SPM 2” learned of episodes of atrial fibrillation after Applicant was hospitalized in mid-January; he did not associate that condition with the work situation. (Tr. 251.)
  - “SPM 2” was not aware that Applicant was hospitalized for treatment of severe depression later in January. (Tr. 256.)
  - “At that stage, we had just been told that there may be an association between his illness and his work environment.” (Tr. 274.)
- The Tribunal concluded that, while it regretted Applicant was not moved months earlier, the Fund is not liable for failure to carry out the transfer earlier than it did, given ordinary workplace frictions, Applicant’s limited disclosure of psychological problems, and considerations of efficiency and Applicant’s capacities and health.

### Legal question: duty to act absent a finding of harassment
- The Tribunal posed whether liability could arise from Fund managers’ failure to take effective action in response to a supervisory situation that Applicant maintained caused great distress and threatened his health, despite the Tribunal having concluded Applicant was not subjected to impermissible harassment.
- The Fund maintained that an employee’s complaint about treatment that does not amount to harassment does not impose a duty on the Fund to intervene—e.g., to accede to an immediate transfer—stating such a proposition “goes too far.”
- The Tribunal observed that common supervisory difficulties do not by themselves create liability and that the Fund cannot be held liable whenever a supervisee experiences difficulties and requests a transfer.

### Admissibility and weight of medical evidence; medical causality
- Notable medical facts:
  - Applicant experienced significant physical and psychological illness: atrial fibrillation and depression, both necessitating hospitalizations.
  - The outside consultant found that “... Mr. [“DD”]’s health has suffered in the last 16-18 months, but [the consultant] cannot attribute causation solely to his workplace relationship or working environment.” (Letter from Fund’s counsel to Applicant’s counsel, December 12, 2002.)
  - The consultant also stated it was “beyond the scope of [the consultant’s review] review to determine whether or to what extent Mr. [“DD”]’s mental and physical health problems were directly caused by any one factor.” (Letter from Fund’s counsel to Applicant’s counsel, December 12, 2002.)
- The Fund requested that portions of Applicant’s brief and supporting exhibits be “wholly disregarded insofar as they are claimed to ‘establish’ medical causality.”
- The Fund asserted that evaluation of the linkage between Applicant’s health condition and the workplace is more appropriately carried out by the Fund’s Workers’ Compensation Claim Administrator and its medical experts, and that it is inappropriate for the Tribunal to determine medical causality in the first instance where the Applicant had not pursued the administrative workers’ compensation process.
- The Tribunal considered two distinct questions:
  - Whether medical evidence may be considered as circumstantial or probative evidence of harassment (i.e., evidence of the complainant’s emotional response to alleged conduct).
  - Whether medical evidence should be considered at the remedial stage (e.g., for claims for unreimbursed medical expenses).
- Precedent and procedural posture:
  - The Tribunal has previously refused to strike health-related documents from the record in similar cases (e.g., Ms. “BB”), deferring questions of probative weight until liability is addressed.
  - A conclusion that an applicant has not established harassment before the Tribunal would not preclude a separate determination by the Workers’ Compensation Claim Administrator that an injury arose out of and in the course of employment.
  - Applicant had filed a Workers’ Compensation claim in January 2003 and had indicated that it be stayed pending resolution of the grievance process.
- The Tribunal recognized a distinction between:
  - The Workers’ Compensation inquiry: whether an injury is compensable as “arising out of, and in the course of, employment” under GAO No. 20, Rev. 3 (Workers’ Compensation Policy) (November 1, 1982), Section 1.
  - The Tribunal’s inquiry: whether the Fund violated its internal law by subjecting an employee to impermissible harassment or by failing to take effective measures in response.
- The Tribunal observed that terms defining harassment—“intimidating, hostile, or offensive work environment”—are meaningful by reference to emotional response, so evidence of emotional reaction, whether medical reports or lay observations, may be probative of harassment or related actionable mistreatment.

### Tribunal conclusions and procedural implications
- The Tribunal:
  - Accepted that Applicant experienced a painful situation with likely severe health impact.
  - Concluded the Fund is not liable for failing to transfer Applicant sooner, given the facts and Applicant’s limited disclosure of psychological problems.
  - Left open the question of the weight to be given to medical evidence in assessing liability, noting prior practice to retain but defer evaluation of medical documents until liability is addressed.
  - Noted that a separate Workers’ Compensation determination could reach a different conclusion on work-relatedness of medical conditions, and that such determinations are the responsibility of the Claim Administrator and subject to administrative review routes.
- Procedural note: There was no Workers’ Compensation claim before the Tribunal for review at that stage; except for remedies, Applicant did not ask the Tribunal for a determination of medical causality as a primary relief.

*Excerpt from the Tribunal’s judgment concerning Mr. “DD”.*

### 119.     It is recalled that the Fund, in its request to exclude portions of the record “insofar as they

### j2007-8 - 119–141

### Evaluation of medical reports and causation (paras. 119–129)
- The Fund sought to exclude portions of the record “insofar as they are claimed to ‘establish’ medical causality,” citing: the fitness-for-duty report of the independent medical examiner (psychiatrist), the consultation notes of the Health Services Department psychologist, and an affidavit of Applicant’s treating psychologist (para. 119).
- The Tribunal’s prior practice: medical reports may be weighed for probative value in light of factors such as the report’s purpose and internal consistency (citing Ms. “J”, Ms. “K”, Ms. “CC”) (para. 120).
- Key questions posed by the Tribunal:
  - Whether medical reports should be “wholly disregarded” insofar as they are claimed to “establish” medical causality, or may they be given probative weight in assessing the Fund’s responsibility for alleged harassment (para. 121).
  - The extent to which erosion of Mr. “DD”’s self-confidence reported by January 2002 may be attributed to acts for which Respondent may be deemed responsible versus other external “stressors” (suicide of a close friend in April 2001; illness of Mr. “DD”’s wife), or to Applicant’s own predispositions and internal mental processes (para. 121).
  - Whether Applicant’s reaction was to impermissible supervisory conduct or to new job responsibilities that were untested and designed to expose him to new challenges (para. 121).
- The Tribunal noted the World Bank Administrative Tribunal’s approach in Lusakueno-Kisongele: medical evidence indicating reaction to life events can rebut allegations that workplace events were the cause (para. 122).
- The Tribunal observed that perceptions of a hostile work environment may create stress but “stress is not an actionable hostile environment”; criticism or adverse decisions about performance or work assignments do not in and of themselves constitute harassment (para. 123).
- The Fund’s independent medical examiner described a “toxic effect” of the supervisor on Applicant; such medical evaluation “lend[s] a measure of support to Applicant’s contentions,” but does not automatically establish actionable harassment under the Fund’s Policy (para. 127).
- Tribunal conclusion on medical reports: they “may be considered and weighed by the Tribunal.” Reports that recount Applicant’s perceptions rather than objective physician evaluations will be discounted as not objectively bearing on causality (para. 128).

### Application of the Fund’s Harassment Policy and reasonableness standard (paras. 124–129, 135)
- The Fund’s Policy on Harassment imposes an objective standard, prohibiting “behavior, verbal or physical that unreasonably interferes with work or creates an intimidating, hostile or offensive work environment.” (Policy on Harassment, para. 1.) (para. 124).
- The Policy explicitly considers both intent and effect; conduct may violate the Policy if “a specific action by one person is reasonably perceived as offensive or intimidating by another” (Policy on Harassment, para. 9.) (para. 124).
- The Tribunal raised whether medical evidence may be relevant not only as circumstantial evidence of mistreatment but also to the “reasonableness” of Applicant’s perception and reaction (para. 124).
- Respondent’s position: it is appropriate to consider “whether Applicant’s own reaction was unreasonable, disproportionate, or unduly inclined to take offense or assign improper motives” to Supervisor 1; the Fund distinguishes this assessment of “reasonableness” from the issue of “medical causality” (para. 124).
- The Tribunal found that the conduct of Applicant’s supervisor did not amount to harassment for which the Fund may be held accountable under its internal law; it referred to Ms. “BB”, para. 88, that supervisors should be “open to the[ ] sensitivities” of those they supervise but “d[id] not follow that damages are payable to those who do not invariably enjoy such treatment.” (para. 129).

### Workers’ Compensation exclusivity and Tribunal remedial scope (paras. 130–136)
- Respondent’s position: the Fund’s Workers’ Compensation policy provides the “exclusive remedy” for any medical condition arising out of an allegedly hostile work environment; although GAO No. 20 does not expressly state exclusivity, the Fund contends it is implicit (para. 130, 132).
- The Fund notes Section 10.01 of GAO No. 20, Rev. 3: “The Claim Administrator will dispose of claims first on the basis of the provisions of this Order and next, when not specified otherwise in this Order, in accordance with established procedures for disposition of claims under the District of Columbia Workers’ Compensation Regulations.” (para. 132).
- The Fund argues that because a hostile work environment has been recognized as compensable under District of Columbia Workers’ Compensation law, and because D.C. law treats Workers’ Compensation as an exclusive remedy, GAO No. 20 should be understood to supply an exclusive remedy for Fund staff (para. 133).
- The Tribunal’s counterpoints:
  - Adopting Respondent’s view would leave a right (under the Harassment Policy) without an effective remedy; the Tribunal can award compensation for “intangible injury” without any finding of a medical condition arising from harassment or a hostile work environment (citing Mr. “F”) (para. 134).
  - A distinction exists between remedies for “intangible injury” (which the Tribunal has applied) and reimbursement of medical expenses, which would require a finding that reimbursement is required to “correct the effects” of the contested administrative act (Statute, Article XIV, Section 1) (para. 134).
  - GAO No. 20, Section 10.01 directs application of D.C. law “when not specified otherwise,” but it does not direct the Tribunal to treat the Fund’s Workers’ Compensation policy as displacing the Tribunal’s jurisdiction to interpret the Fund’s internal law prohibiting workplace harassment (para. 135).
  - The Administrative Tribunal does not have jurisdiction over common law tort claims; its jurisdiction is limited to deciding challenges to “administrative acts” of the Fund (Statute, Article II). While Workers’ Compensation may be an exclusive remedy in lieu of tort actions, it does not displace the Tribunal’s remedial powers to “correct the effects” of an administrative act that contravened internal law (para. 136).

### Alleged discrimination and denial of opportunity to compete for vacancy (paras. 137–141)
- Applicant alleges wrongful denial of opportunity to be considered for a July 2001 vacancy, contending the decision was affected by impermissible discrimination on the basis of gender (para. 137–138).
- Factual background:
  - In July 2001 a vacancy arose that could have returned Applicant to “Division 1” and provided promotion opportunity; Applicant withdrew his application at the request of “SPM 1” (para. 138).
  - The Senior Personnel Manager’s decision to decline to consider Applicant’s application was confirmed by the HRD Director (Tr. 1637) (para. 138).
- Applicable standard: the Tribunal has consistently held that nondiscrimination imposes a substantive limit on discretionary authority (e.g., Mr. “F”, para. 81) (para. 139).
- The Fund’s Discrimination Policy definition excerpted in the record:
  - Discrimination refers to differences in treatment not based on the Fund’s institutional needs and:
    - “is made on the basis of personal characteristics such as age, creed, ethnicity, gender, nationality, race, or sexual orientation;
    - is unrelated to an employee’s work-related capabilities, qualifications, and experience―this may include factors such as disabilities or medical conditions that do not prevent the employee from performing her or his duties;
    - is irrelevant to the application of Fund policies; and
    - has an adverse impact on the individual’s employment, successful job performance, career opportunities, compensation, or other terms and conditions of employment.”
  - “Discrimination can occur in various ways, including but not limited to the following: basing decisions that affect the career of an employee―such as salary adjustments, assignments, performance evaluations, promotions, and other types of recognition on grounds other than professional qualifications or merit ....” (Discrimination Policy, July 3, 2003, p. 4.) (para. 139).
- Applicant’s broader claim: using personnel statistics, Applicant contends the contested decision was “part of a wider pattern of preferential treatment of female managerial candidates” (para. 140).
- Tribunal’s evidentiary note: statistics alone do not establish discrimination; demographic outcomes of a selection process do not by themselves give rise to an inference of discrimination (D’Aoust (No. 2), para. 137; Ms. “T”, para. 50) (para. 140).
- Summary of relevant evidence:
  - Mr. “DD”’s peers in the other two new subordinate positions were both females, and like Mr. “DD” each sought an opportunity to fill a vacancy within one year of assuming new posts (para. 141).
  - Applicant alleges “Subordinate 2” received exceptional permission to underfill a division chief position after about six months in a comparable role; Respondent contends a key distinction: the female staff member’s target position was “a division chief within the specialized career streams,” which differed from the position for which Mr. “DD” was asked to withdraw his application (para. 141).

*Source: International Monetary Fund Administrative Tribunal judgment excerpt (paragraphs 119–141).*

### 142.     In D’Aoust (No. 2)

### In D’Aoust (No. 2)

### Selection, time-in-grade rules, and eligibility
- The Tribunal observed that “at the time of her appointment to RSD Deputy Division Chief at Grade A14, the selectee held a position at Grade A12,” and noted that “[t]his fact, however, does not signify any irregularity in the appointment process, nor does it establish, as Applicant maintains, that the selectee’s ‘career progression at the Fund can only lead to a conclusion of preferential treatment.’”
- The governing regulation quoted by the Tribunal: “‘[o]n appointment to a vacant supervisory position, including ... Deputy Division Chief ..., a staff member may be promoted without regard to the TIG [time-in-grade] requirements provided that the staff member meets the specific experience and educational qualifications for the position as set forth in the job standard and the internal advertisement for the position.’ (Career Opportunities: Policy and Guidelines, p. 8.)”
- There is no time-in-grade requirement that applies in determining eligibility for a deputy division chief position in the specialized career streams.
- In contrast, the Grade A12/13 position in “Division 1” was a non-managerial position governed by the “one year rule.” The eligibility rule stated under the heading “A1 – A14 Vacancies (Excluding Deputy Division Chief and Assistant to the Director Positions) in specialized career streams:” was: “A regular staff member who has worked in his/her current position for at least one year.” (Emphasis supplied.)

### Evidence on candidates, exceptions, and alleged preferential treatment
- Evidence showed only one other candidate had applied for the division chief position sought by “Subordinate 2”, a male at Grade A13; both candidates proceeded to the selection process; the female ultimately selected underfilled the post on a “deputy-in-charge” basis.
- The Tribunal found Applicant’s theory that a special exception was permitted to favor the female candidate “is not sustainable.”
- Applicant argued that “Subordinate 2” was treated differently and that exceptions to the one-year rule facilitated the female’s ascent; the Tribunal noted that managerial positions (such as deputy division chief) were not governed by the “one-year rule.”
- A different female subordinate was required to wait a full year before taking up an ASPM position; however, documentation for the 2001 supporting positions explicitly stated that “[s]taff who apply for these positions agree, if selected, to not compete for ASPM positions for a period of one year.”

### Discretion, waivers, and alleged abuse
- Testimony by the then Senior Personnel Manager (“SPM 1”) indicated an expectation that supporting assignments were “rotation assignment (2 years),” and staff appointed to those supporting positions were advised they would need to serve for two years to assure success of the new organizational arrangements in 2001; none of the three individuals remained for the two-year period, the supporting position vacated by Mr. “DD” was never re-filled, supervisory positions changed hands, and the Department abandoned the three supervisor/three supporting positions structure.
- Applicant testified that “Supervisor 2” told him the one-year rule “can be waived by mutual consent.” (Tr. 188.)
- Applicant testified that at an August 2001 Human Resources meeting an official gave “an extensive explanation about waivers” of the one-year rule, stating that it did not apply to “developmental” assignments.
- The Tribunal recognized that exceptions may have been made or could be made to the “one year rule,” but held that “The fact that such exception was not made in the case of Mr. ‘DD’ does not of itself establish abuse of discretion on the part of the Fund.”
- The Tribunal cited precedent (Mr. “R”, Judgment No. 2002-1; Ms. “G” and Mr. “H”, Judgment No. 2002-3; “Shinberg I”) where it rejected the contention that the Fund should have made exceptions to personnel policies to avoid an “unfair and discriminatory result,” noting the necessity to examine consistency with the essential objectives of the Fund’s grading and promotion policies.
- Applicant asserted that denying transfer to “Division 1” contributed to alleged harassment and that the Fund’s “refusal to make the accommodation” was arbitrary and capricious; SPM 1 testified he did not regard the situation as “harassment” or as motivating Applicant’s interest in promotion.
- Senior officials arranged for Applicant’s transfer to “Division 1” in late 2001; transfer was initially determined for May 2002 but, after Health Services Department intervention, was effected in March 2002.
- The Tribunal concluded that as of end of July 2001 SPM 1 had little basis to consider Applicant’s assignment might constitute harassment or ill health sufficient to justify a waiver; Applicant had sought an opportunity to apply for career-progression vacancies rather than an immediate transfer.
- The Tribunal concluded: the Fund did not abuse its discretion when it requested Applicant to withdraw his application for the “Division 1” vacancy in August 2001; the decision was not tainted by impermissible discrimination on the basis of gender.

### Administrative review, outside consultant, and grievances
- Applicant challenged elements of the administrative review process: engagement of an outside consultant, absence of a decision by the HRD Director, and the protracted and costly process; Applicant contended the administrative review was unfair and unduly protracted.
- The HRD Director had notified Applicant’s counsel of the Fund’s intention to engage “an independent outside investigator” (Letter from HRD Director to Applicant’s counsel, August 19, 2002). Applicant and counsel met with the consultant; settlement negotiations continued throughout 2003.
- On May 8, 2003 the Fund communicated that “... administrative review of [his] grievance has not been formally concluded, and the possibility of a negotiated settlement remains.” (Letter from Fund’s counsel to Applicant’s counsel, May 8, 2003.)
- By January 12, 2004 the Fund formally notified Applicant’s counsel that it regarded the administrative review pursuant to GAO No. 31 as exhausted. (Letter from Fund’s counsel to Applicant’s counsel, January 12, 2004.)
- Applicant asserted he and his counsel were “wholly unaware” that the consultant’s investigation would later be characterized as privileged and used to assist the Fund’s defense; the Fund maintained it never represented the consultant’s report would be provided to Applicant’s counsel.
- The Tribunal concluded that engagement of the consultant and the consultant’s reporting were proper; Applicant had due notice and was not prejudiced by the procedure.
- The HRD Director never issued a decision on Applicant’s request for administrative review; the Tribunal found Applicant was not prejudiced by that failure, noting the Director intended to request a Deputy Managing Director to take the decision and had not been provided with the consultant’s report for independence reasons. (Tr. 1688–92.)
- The Tribunal concluded Applicant did not show prejudice from the manner in which the Fund conducted the administrative review.

### Grievance Committee proceedings and evidentiary rulings
- Applicant claimed the Grievance Committee manifested bias via evidentiary rulings; the Tribunal reiterated precedent that the Grievance Committee’s decisions as to admissibility of evidence and production of documents are not subject to review by the Administrative Tribunal (citing Ms. “Z”, IMFAT Judgment No. 2005-4, para. 119).
- The Tribunal may, however, “take account of the treatment of an applicant before, during and after recourse to the Grievance Committee” and “is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” (D’Aoust, para. 17; D’Aoust (No. 2), para. 171.)
- Any lapse in the Grievance Committee’s evidentiary record may be remedied under the Tribunal’s authority pursuant to Article X of its Statute and Rules XVII and XIII of its Rules of Procedure to order production of documents, request information, and hold oral proceedings (citing Estate of Mr. “D”, para. 135; D’Aoust (No. 2), para. 172).
- Applicant sought production of documents and oral proceedings before the Tribunal but did not request an evidentiary hearing; he requested only oral argument by counsel.
- The Tribunal observed that management’s adoption of Grievance Committee recommendations does not bind the Tribunal’s de novo review; prior cases (e.g., Ms. “BB”, Estate of Mr. “D”, Ms. “AA”) illustrate that acceptance of Grievance Committee recommendations is not dispositive of Tribunal findings.

*Excerpt from the IMF Administrative Tribunal judgment and related case discussion (D’Aoust (No. 2) and cited precedents).*

### 169.     Accordingly, the Tribunal denies Mr. “DD”’s contentions as to the Grievance

### j2007-8 - 169.

### Tribunal rulings on procedural requests and evidentiary weight
- The Tribunal denies Mr. “DD”’s contentions as to the Grievance Committee’s rulings on his requests for production of documents and to call particular witnesses. (para. 169)
- The Tribunal is “authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it,” D’Aoust, para. 17, and may consider whether there is cause to discount that record in weighing the evidence. (para. 170)
- After reviewing the transcripts of the extensive Grievance proceedings, the Tribunal finds no ground to hold that the Committee’s proceedings should be given any less weight than ordinarily accorded. (para. 170)

### Admissibility of retaliation claim and exhaustion of remedies
- Article V, Section 1 of the Tribunal’s Statute: “When the Fund has established channels of administrative review for the settlement of disputes, an application may be filed with the Administrative Tribunal only after the applicant has exhausted all available channels of administrative review.” (para. 171)
- The Tribunal has emphasized the exhaustion requirement and its twin goals: providing opportunities for resolution and building a detailed record for adjudication. See Ms. “W”, IMFAT Judgment No. 2005-2 (November 17, 2005), para. 116; Estate of Mr. “D”, IMFAT Judgment No. 2001-1 (March 30, 2001), para. 66. (para. 173)
- The Tribunal’s established approach to later-arising claims:
  - A later claim may be admissible if (a) it is closely linked with the principal decision contested and (b) it has been given some measure of review prior to the Tribunal application. (para. 173)
  - Example: In Ms. “W”, the Tribunal admitted a postdating claim because it arose during a pending complex review procedure and testimony on those allegations was admitted during the Grievance Committee hearings, thereby fulfilling exhaustion policies. (para. 173, citing Ms. “W”, para. 118)
  - Contrasting example: In Ms. “Z”, IMFAT Judgment No. 2005-4 (December 30, 2005), para. 14, the Tribunal declined to review a newly raised claim where it found “no link” with the principal decision and no prior review. (para. 173)

### Application to Mr. “DD”’s retaliation claim
- The Tribunal assesses whether Mr. “DD”’s retaliation claim is:
  - (a) “closely linked” with his underlying challenge to the conditions of his employment, and
  - (b) given some measure of review in the dispute resolution process. (para. 174)
- The Tribunal concludes that Mr. “DD”’s retaliation claim is sufficiently linked with his underlying challenge to permit adjudication. (para. 174)
- Applicant’s allegations regarding retaliation:
  - Following submission of his request for administrative review, Applicant asserts that “his work assignments were restricted, his professional advancement was stalled and his [then] current supervisor ... became infuriated with him during the course of the proceedings before the Grievance Committee.” (para. 175)
- Evidentiary record from Grievance Committee:
  - Applicant testified that his relationship with the “Division 1” Chief was never the same upon return and that he became a “social pariah.” (para. 176)
  - Testimony of the “Division 1” Chief tended to show that health considerations influenced assignment choices; the “Division 1” Chief, in Applicant’s own estimation, was helpful in securing a new job outside the Fund. (para. 176)

### Applicable internal protections and standards
- GAO No. 31, Rev. 3, Section 9.01 Protection of Staff Members: “No individual shall be subject to adverse action of any kind because of pursuing a grievance through administrative channels, filing a grievance or complaint with the Grievance Committee, presenting any testimony to the Committee, or assisting a grievant.” (para. 177, footnote)
- GAO No. 31, Rev. 3, 9.04 Protection Against Reprisal: “Any adverse action taken against an individual in retaliation for his or her pursuit of, or participation in, a grievance may be grounds for a finding of misconduct and the imposition of disciplinary measures under General Administrative Order No. 33.” (para. 177, footnote)
- Fund’s Policy on Harassment:
  - “30. Anyone who feels harassed, particularly by a supervisor, is likely to fear reprisal should he or she bring the matter to the attention of those in authority. However, reprisal against anyone who files a complaint in good faith is unacceptable and in itself constitutes misconduct subject to disciplinary action.” (para. 178)
  - “31. A person who brings a complaint in good faith should not be subjected to retaliation, and adverse action taken against a complainant that appears to stem from the registering of a complaint will be thoroughly investigated. As part of follow-up measures to formal complaints, officials of HRD will check from time to time with complainants to ensure that no such adverse actions have been taken as a result of their filing a complaint.” (para. 178)

### Tribunal finding on retaliation
- The Tribunal reiterates precedent that sustainability of an accusation of harassment made in good faith is not a pre-condition for a finding of reprisal. See Ms. “C”, Judgment No. 1997-1 (August 22, 1997), para. 22, citing Belas-Gianou v. The Secretary General of the United Nations (UNAT Judgment No. 707 (1995), p. 45). (para. 179)
- Final finding: On the facts of the case, Applicant has not substantiated a claim of retaliation. There is no evidence supporting that any difficulties Applicant experienced upon return to “Division 1” flowed from pursuit of his Grievance. (para. 180)

### Decision
- The Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Application of Mr. “DD” is denied.
- Signatories:
  - Stephen M. Schwebel, President
  - Nisuke Ando, Associate Judge
  - Michel Gentot, Associate Judge
  - Celia Goldman, Registrar
- Washington, D.C., November 16, 2007

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_Source: https://www.imf.org/-/media/files/imfat/j2007-8.pdf_