## j2010-1

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---

### Overview of the Tribunal proceeding
- On February 8, 2010, the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and two members designated by him, Judges Nisuke Ando and Michel Gentot, met to adjudge the Motion for Summary Dismissal of the case brought by Ms. Charmion O’Connor, a staff member of the Fund.
- Applicant contests the Fund’s decision to promote her from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8, following reclassification of her position after a job audit.
- Applicant’s principal contentions:
  - The change in job classification was not consistent with the level or nature of her job functions.
  - The reclassification placed her in a career stream that limits her future career opportunities.
  - The job audit outcome was unfairly affected by her 2006 and 2007 Annual Performance Reviews (APRs) and Merit-to-Allocation Ratios (MARs), which she alleges did not reflect her actual performance and were tainted by a pattern of racial discrimination in ratings allocation by departmental management.
- Respondent’s Motion for Summary Dismissal basis:
  - Applicant did not meet the requirement of Article V of the Tribunal’s Statute that all available channels of administrative review must be exhausted before filing with the Administrative Tribunal.
- Procedural effect:
  - A Motion for Summary Dismissal suspends the period for answering the Application until the Motion is acted on by the Tribunal; at this stage the case is limited to the question of admissibility.

### Procedural history and case filing
- Filing timeline and statute of limitations:
  - Applicant initially submitted an Application on July 25, 2009, one day following expiration of the statute of limitations.
  - Registrar noted noncompliance with Article VI, Section 1 of the Statute, which provides that “[a]n application challenging the legality of an individual decision shall not be admissible if filed with the Tribunal more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision.”
  - Applicant requested waiver of the statute of limitations pursuant to Article VI, Section 3, which provides that “[i]n exceptional circumstances, the Tribunal may decide at any time, if it considers the delay justified, to waive the time limits prescribed under Section 1 or 2 of this Article in order to receive an application that would otherwise be inadmissible.”
  - Applicant sought to file a revised Application on August 3, 2009. The Tribunal exercised discretion to accept the Application as submitted on August 3, 2009, citing that the initial submission was only one day past the statutory deadline and that Applicant, unrepresented by counsel, cited illness among factors contributing to the delay.
- Compliance with Rules of Procedure:
  - Pursuant to Rule VII, para. 6, the Registrar advised deficiencies and gave Applicant time to correct them; the Application was brought into compliance within that period and is considered filed on the original date.
  - The Application was transmitted to Respondent on August 12, 2009. On August 13, 2009, pursuant to Rule IV, para. (f), the Registrar circulated within the Fund a notice summarizing the issues raised in the Application.
- Motion for Summary Dismissal and responses:
  - On September 10, 2009, Respondent filed a Motion for Summary Dismissal pursuant to Rule XII. The Motion was transmitted to Applicant on September 11, 2009.
  - On October 13, 2009, Applicant filed an Objection to the Motion, transmitted to the Fund.
  - On October 27, 2009, the Tribunal issued a Request for Information and Views to Respondent pursuant to Rule XVII, para. 3; Respondent filed its Response on November 10, 2009.
  - Applicant filed Comments responsive to the Fund’s submission on November 24, 2009.
- Anonymity and document production:
  - Applicant requested anonymity pursuant to Rule XXII; Respondent opposed; Applicant later withdrew the request; the Tribunal found no ground to treat Applicant anonymously.
  - Applicant requested production of documents pursuant to Rule XVII; Respondent did not comment; Tribunal did not consider those requests since they were not pertinent to disposition of the Motion.
- Oral proceedings:
  - The Tribunal decided not to hold oral proceedings as neither party requested them and they were not deemed useful to disposition of the Motion.

### Factual background of the employment and reclassification
- Employment history and position:
  - Applicant’s Fund service: first employed beginning in 1970 at Grade A until 1983; returned in 1986 on a contractual appointment as a secretary; beginning in 1987 as a staff member at Grade A4, later Grade A5.
  - At the time of the events giving rise to the Application, Applicant served as a Senior Administrative Assistant (Secretary, Division) at Grade A7 in one of the Fund’s departments.
- Job audit and promotion:
  - In November 2007, the Compensation and Benefits Policy Division (CBD) of the Human Resources Department (HRD), at the request of Applicant’s Senior Personnel Manager (SPM), undertook a job audit of Applicant’s position.
  - Outcome: reclassification to Senior Administrative Assistant (Office Services) at Grade A7/A8.
  - On November 29, 2007, Applicant was promoted to Grade A8 in the reclassified position, with effect from November 1, 2007.
  - The reclassification and promotion decision was communicated at a meeting of December 4, 2007; Applicant immediately protested the decision to the SPM and to a department Deputy Director.

### Channels of administrative review pursued by Applicant
- Administrative review under GAO No. 31:
  - By memorandum of June 3, 2008 to the Director of Human Resources, Applicant initiated formal administrative review pursuant to GAO No. 31.
  - Applicant’s assertions in the Request for Administrative Review:
    - Decisions and actions by her department and HRD negatively influenced the audit outcome and were “arbitrary, capricious, discriminatory, and inconsistent with the Fund’s rules and regulations.”
    - Managers in her department improperly interfered with HRD’s audit process.
    - The reclassification decision was inconsistent with her job functions and accomplishments.
    - Her May 2006 and May 2007 APRs “lacked credibility and misinformed [her] November 1, 2007 job audit because the processes through which these documents evolved contravened the Fund’s HR policies and resulted in an unfairly biased picture . . . .”
- HRD Director decision on administrative review:
  - On July 7, 2008, the Director of Human Resources denied the request for administrative review on two grounds:
    - Standing: Fund regulations provide that job audit decisions may be challenged only by the affected department; neither the incumbent nor the incumbent’s immediate supervisor may bring such a challenge. The HRD Director concluded Applicant lacked standing to contest the job audit.
    - Timeliness: Applicant failed to raise challenges to her May 2006 and May 2007 APRs within the six-month period prescribed by GAO No. 31.
- Grievance Committee filing and claims:
  - On October 8, 2008, Applicant filed a Grievance with the Fund’s Grievance Committee asserting five claims:
    1. Managers in her department provided misinformation about her job content and accomplishments to prejudice her grade, salary, career stream, advancement opportunities, and recognition.
    2. Discriminatory decisions substantially affected the outcome of her position audit; the May 1, 2006 performance assessment was part of a larger pattern of racial discrimination.
    3. HRD contravened Fund rules by accepting a “distorted view of [her] job content, functions, responsibilities, and achievements” from department managers.
    4. Complaint about HRD’s handling of her request for administrative review.
    5. Allegation of retaliation for seeking review of her claims.
- Grievance Committee jurisdictional ruling and Order of April 24, 2009:
  - The Fund moved to dismiss the Grievance in its entirety for lack of jurisdiction; following a pre-hearing conference, the Grievance Committee granted the Fund’s motion in all but one respect.
  - Jurisdictional findings:
    - The Grievance Committee lacks authority to hear a challenge to the validity of a staff regulation itself; such challenges may be made to the Administrative Tribunal if in accord with its rules. The Committee’s jurisdiction is confined to the application of rules to staff members and is precluded from hearing challenges to the validity of staff regulations as approved by the Managing Director.
    - Because Fund rules governing job audits provide that “[n]either incumbents of positions, nor their immediate supervisor(s) are entitled to request a review of a job grading decision made by CBD,” the Grievance Committee concluded the Grievant could not challenge the job grading decision itself; the Committee has no jurisdiction to change the Fund’s policy that only a Department may challenge a CBD decision.
  - Exception retained by the Grievance Committee:
    - The Committee found that allegations that departmental management purposefully provided false and misleading information to job auditors challenge the “integrity of the audit process rather than the audit itself,” and thus fall within the Committee’s purview.
    - The Committee recognized a fine line between alleging corruption in the process (a complaint the Committee may hear) and challenging the audit under its procedures (which it may not hear). It decided that, on the merits, “only specific evidence of corruption and lack of integrity in the process will be heard.”

### Procedural rulings and key dates (Grievance Committee)
- The Grievance Committee dismissed challenges to Ms. O’Connor’s 2006 and 2007 APRs and MARs on the ground that she had not initiated administrative review within six months of the contested decisions, pursuant to GAO No. 31. (Grievance Committee Order, pp. 10-12.)
- The Committee found evidence that Ms. O’Connor believed her ratings were inappropriate at the time she was given them, and that subsequent motivations (e.g., evidence allegedly acquired in or after December 2007 or concern about effects from the 2008 downsizing exercise) did not justify extending time limits. (Id., pp. 10-12.)
- The Committee rejected tolling of time limits on the basis that Ms. O’Connor had availed herself of informal dispute resolution through the Fund’s Ombudsperson during the period. (Id., pp. 10-12.)
- The Committee dismissed as outside its jurisdiction complaints relating to HRD’s handling of the administrative review process prior to filing the Grievance. (Id., pp. 13-14.)
- The Committee dismissed Ms. O’Connor’s claim that her 2008 APR and MAR were affected by retaliation because she had not taken prerequisite administrative review steps prior to raising the claim in her Grievance. (Id., pp. 13-14.)
- The Grievance Committee scheduled a merits hearing for November 30 and December 1, 2009 on the portion of the Grievance that remained pending. The Fund informed the Tribunal that a final decision by Fund Management was not expected before mid-March, 2010, at the earliest. (Post-hearing status.)
- Ms. O’Connor filed her Application with the Administrative Tribunal on August 3, 2009.
- The Administrative Tribunal issued its decision in Washington, D.C., February 8, 2010.

### Parties’ principal contentions
- Applicant (merits):
  - Applicant’s job functions and work performance are consistent with a position classification of Grade A11/A12 in a more pertinent career stream, with opportunities for career advancement.
  - Applicant contends that the 2006 and 2007 APRs, while central to the job audit, provided misleading information to auditors and tainted the proceedings with impermissible racial bias.
  - Applicant asserts an aggressive reduction in competency ratings and MAR without regard to performance or position standards; Applicant’s MAR was not consistent with her performance rating.
  - Applicant alleges that her supervisor’s preparation of her 2006 APR rendered his recommendation to the job audit panel unreliable.
  - Applicant alleges differential treatment based on race in the allocation of the May 2006 MARs, in violation of the Fund’s rules against discrimination.
  - Applicant seeks relief:
    - rescission of the promotion decision of November 29, 2007;
    - promotion to the uppermost level of Grade A11 of the Information ladder, retroactive to November 1, 2007;
    - compensation for “stress, aggravation, insults, and lack of professional courtesies”;
    - punitive damages.
  - Note: An additional claim that May 2008 APR and MAR were impermissibly affected by retaliation was asserted in the Application but withdrawn in Applicant’s Objection to the Motion for Summary Dismissal.
- Respondent (admissibility):
  - The Application should be dismissed in its entirety because Applicant has not exhausted all available channels of administrative review as required by Article V of the Tribunal’s Statute; Management has not rendered a final decision and the matter is not ripe.
  - The job audit/promotion challenge is pending before the Grievance Committee, which will hear the “integrity of the job audit process”; the Tribunal should dismiss that claim without prejudice to Applicant’s right to submit a new application following completion of the Grievance Committee process and Management’s final decision.
  - The Tribunal’s Statute does not authorize advisory opinions or retention of jurisdiction where Article V exhaustion has not occurred; retaining jurisdiction might encourage simultaneous filings.
  - To the extent Applicant seeks to adjudicate the legality of May 2006 and May 2007 APRs and MARs as separate claims, those claims should be dismissed with prejudice for failure to initiate timely review under GAO No. 31.

### Applicant’s contentions on admissibility (summary)
- The Application addresses a matter separate from the claim accepted for review by the Grievance Committee.
- The claim is that racial discrimination in the May 2006 and May 2007 APR processes impermissibly affected the November 2007 job reclassification/promotion decision; Applicant challenges the “discrimination model” in her department since 2006.
- Applicant states she has “never requested review of the individual Annual Performance Reviews (APRs).”
- Applicant argues that use of the May 2006 and May 2007 APRs in the November 2007 job audit gives rise to a new claim with its own limitations period; each use of these documents is an instrument of recurring violations of the Fund’s rules against discrimination.

### Tribunal analysis — exhaustion of remedies and jurisdiction
- Article V, Section 1 of the Tribunal’s Statute requires exhaustion of available channels of administrative review before filing an application with the Tribunal; the Tribunal has recognized exhaustion is intended to give the administration full opportunity to address complaints. (Commentary on the Statute, p. 23; IMFAT precedents cited.)
- Where the Grievance Committee concludes it lacks jurisdiction and dismisses a grievance, the Tribunal’s practice applies the three month statute of limitations of Article VI as running from the Committee’s dismissal. (Citing Estate of Mr. “D”.)
- Difficulty arises when the Grievance Committee exercises jurisdiction over some claims but not others; Tribunal jurisprudence favors recourse to the Grievance Committee because it produces a detailed factual and legal record useful to the Tribunal. (Citing Ms. “Y”, Mr. M. D’Aoust, Ms. “Z”, Ms. “J”.)
- The Grievance Committee decides for itself whether it has jurisdiction; its determination is relevant but not necessarily dispositive of whether Article V exhaustion has been met by an applicant. (Citing Estate of Mr. “D”.)
- The Tribunal determined that Applicant’s challenge to the outcome of the job audit (a “regulatory” challenge) and her claim that the audit process was improper are closely allied; the Tribunal’s decision making would benefit from the Grievance Committee record on the latter claim and from Management’s final decision.
- Permitting the Tribunal to decide the job audit outcome before exhaustion of administrative review on the audit-process claim would undermine Article V’s twin goals of providing opportunities for resolution and building a detailed record for adjudication. (Citing Estate of Mr. “D”, para. 66.)

### Tribunal findings on the 2006 and 2007 APRs and MARs
- The Fund contends that any attempt by Applicant to adjudicate the legality of her 2006 and 2007 APRs as separate claims should be dismissed with prejudice for untimely initiation under GAO No. 31.
- Applicant insists she has never requested review of her individual APR reports and contends the Fund has reframed her complaint.
- The Tribunal concluded it could not properly render an advisory opinion by deciding “with prejudice” whether any challenge to the legality of the APR ratings is time-barred in the absence of a fully developed record and pleadings on the merits.
- The Tribunal indicated that the evidentiary and pleadings record developed in the administrative review proceedings would better inform any future Tribunal consideration of the significance of the 2006 and 2007 APRs in relation to a job reclassification challenge.

### Decision
- The Administrative Tribunal unanimously dismissed the Application in its entirety for failure to meet the requirement of Article V of the Statute.
- The dismissal was without prejudice to Applicant’s right to bring a new Application following the exhaustion of all available channels of administrative review pursuant to Article V of the Statute.

*The Administrative Tribunal of the International Monetary Fund, Washington, D.C., February 8, 2010.*

### Introduction

### Introduction

### Overview of the Tribunal proceeding
- On February 8, 2010, the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and two members designated by him, Judges Nisuke Ando and Michel Gentot, met to adjudge the Motion for Summary Dismissal of the case brought against the International Monetary Fund by Ms. Charmion O’Connor, a staff member of the Fund.
- Applicant contests the Fund’s decision to promote her from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8, following reclassification of her position after a job audit.
- Applicant’s principal contentions:
  - The change in job classification was not consistent with the level or nature of her job functions.
  - The reclassification placed her in a career stream that limits her future career opportunities.
  - The job audit outcome was unfairly affected by her 2006 and 2007 Annual Performance Reviews (APRs) and Merit-to-Allocation Ratios (MARs), which she alleges did not reflect her actual performance and were tainted by a pattern of racial discrimination in ratings allocation by departmental management.
- Respondent’s Motion for Summary Dismissal basis:
  - Applicant did not meet the requirement of Article V of the Tribunal’s Statute that all available channels of administrative review must be exhausted before filing with the Administrative Tribunal.
- Procedural effect:
  - A Motion for Summary Dismissal suspends the period for answering the Application until the Motion is acted on by the Tribunal; at this stage the case is limited to the question of admissibility.

### Procedural history and case filing
- Filing timeline and statute of limitations:
  - Applicant initially submitted an Application on July 25, 2009, one day following expiration of the statute of limitations.
  - Registrar noted noncompliance with Article VI, Section 1 of the Statute, which provides that “[a]n application challenging the legality of an individual decision shall not be admissible if filed with the Tribunal more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision.”
  - Applicant requested waiver of the statute of limitations pursuant to Article VI, Section 3, which provides that “[i]n exceptional circumstances, the Tribunal may decide at any time, if it considers the delay justified, to waive the time limits prescribed under Section 1 or 2 of this Article in order to receive an application that would otherwise be inadmissible.”
  - Applicant sought to file a revised Application on August 3, 2009. The Tribunal exercised discretion to accept the Application as submitted on August 3, 2009, citing that the initial submission was only one day past the statutory deadline and that Applicant, unrepresented by counsel, cited illness among factors contributing to the delay.
- Compliance with Rules of Procedure:
  - Pursuant to Rule VII, para. 6, the Registrar advised deficiencies and gave Applicant time to correct them; the Application was brought into compliance within that period and is considered filed on the original date.
  - The Application was transmitted to Respondent on August 12, 2009. On August 13, 2009, pursuant to Rule IV, para. (f), the Registrar circulated within the Fund a notice summarizing the issues raised in the Application.
- Motion for Summary Dismissal and responses:
  - On September 10, 2009, Respondent filed a Motion for Summary Dismissal pursuant to Rule XII. The Motion was transmitted to Applicant on September 11, 2009.
  - On October 13, 2009, Applicant filed an Objection to the Motion, transmitted to the Fund.
  - On October 27, 2009, the Tribunal issued a Request for Information and Views to Respondent pursuant to Rule XVII, para. 3; Respondent filed its Response on November 10, 2009.
  - Applicant filed Comments responsive to the Fund’s submission on November 24, 2009.
- Anonymity and document production:
  - Applicant requested anonymity pursuant to Rule XXII; Respondent opposed; Applicant later withdrew the request; the Tribunal found no ground to treat Applicant anonymously.
  - Applicant requested production of documents pursuant to Rule XVII; Respondent did not comment; Tribunal did not consider those requests since they were not pertinent to disposition of the Motion.
- Oral proceedings:
  - The Tribunal decided not to hold oral proceedings as neither party requested them and they were not deemed useful to disposition of the Motion.

### Factual background of the employment and reclassification
- Employment history and position:
  - Applicant’s Fund service: first employed beginning in 1970 at Grade A until 1983; returned in 1986 on a contractual appointment as a secretary; beginning in 1987 as a staff member at Grade A4, later Grade A5.
  - At the time of the events giving rise to the Application, Applicant served as a Senior Administrative Assistant (Secretary, Division) at Grade A7 in one of the Fund’s departments.
- Job audit and promotion:
  - In November 2007, the Compensation and Benefits Policy Division (CBD) of the Human Resources Department (HRD), at the request of Applicant’s Senior Personnel Manager (SPM), undertook a job audit of Applicant’s position.
  - Outcome: reclassification to Senior Administrative Assistant (Office Services) at Grade A7/A8.
  - On November 29, 2007, Applicant was promoted to Grade A8 in the reclassified position, with effect from November 1, 2007.
  - The reclassification and promotion decision was communicated at a meeting of December 4, 2007; Applicant immediately protested the decision to the SPM and to a department Deputy Director.

### Channels of administrative review pursued by Applicant
- Administrative review under GAO No. 31:
  - By memorandum of June 3, 2008 to the Director of Human Resources, Applicant initiated formal administrative review pursuant to GAO No. 31.
  - Applicant’s assertions in the Request for Administrative Review:
    - Decisions and actions by her department and HRD negatively influenced the audit outcome and were “arbitrary, capricious, discriminatory, and inconsistent with the Fund’s rules and regulations.”
    - Managers in her department improperly interfered with HRD’s audit process.
    - The reclassification decision was inconsistent with her job functions and accomplishments.
    - Her May 2006 and May 2007 APRs “lacked credibility and misinformed [her] November 1, 2007 job audit because the processes through which these documents evolved contravened the Fund’s HR policies and resulted in an unfairly biased picture . . . .”
- HRD Director decision on administrative review:
  - On July 7, 2008, the Director of Human Resources denied the request for administrative review on two grounds:
    - Standing: Fund regulations provide that job audit decisions may be challenged only by the affected department; neither the incumbent nor the incumbent’s immediate supervisor may bring such a challenge. The HRD Director concluded Applicant lacked standing to contest the job audit.
    - Timeliness: Applicant failed to raise challenges to her May 2006 and May 2007 APRs within the six-month period prescribed by GAO No. 31.
- Grievance Committee filing and claims:
  - On October 8, 2008, Applicant filed a Grievance with the Fund’s Grievance Committee asserting five claims:
    1. Managers in her department provided misinformation about her job content and accomplishments to prejudice her grade, salary, career stream, advancement opportunities, and recognition.
    2. Discriminatory decisions substantially affected the outcome of her position audit; the May 1, 2006 performance assessment was part of a larger pattern of racial discrimination.
    3. HRD contravened Fund rules by accepting a “distorted view of [her] job content, functions, responsibilities, and achievements” from department managers.
    4. Complaint about HRD’s handling of her request for administrative review.
    5. Allegation of retaliation for seeking review of her claims.
- Grievance Committee jurisdictional ruling and Order of April 24, 2009:
  - The Fund moved to dismiss the Grievance in its entirety for lack of jurisdiction; following a pre-hearing conference, the Grievance Committee granted the Fund’s motion in all but one respect.
  - Jurisdictional findings:
    - The Grievance Committee lacks authority to hear a challenge to the validity of a staff regulation itself; such challenges may be made to the Administrative Tribunal if in accord with its rules. The Committee’s jurisdiction is confined to the application of rules to staff members and is precluded from hearing challenges to the validity of staff regulations as approved by the Managing Director.
    - Because Fund rules governing job audits provide that “[n]either incumbents of positions, nor their immediate supervisor(s) are entitled to request a review of a job grading decision made by CBD,” the Grievance Committee concluded the Grievant could not challenge the job grading decision itself; the Committee has no jurisdiction to change the Fund’s policy that only a Department may challenge a CBD decision.
  - Exception retained by the Grievance Committee:
    - The Committee found that allegations that departmental management purposefully provided false and misleading information to job auditors challenge the “integrity of the audit process rather than the audit itself,” and thus fall within the Committee’s purview.
    - The Committee recognized a fine line between alleging corruption in the process (a complaint the Committee may hear) and challenging the audit under its procedures (which it may not hear). It decided that, on the merits, “only specific evidence of corruption and lack of integrity in the process will be heard.”

*Source: Administrative Tribunal of the International Monetary Fund, Introduction (j2010-1).*

### 23.      In the same Order, the Grievance Committee dismissed Ms. O’Connor’s challenges to her

### j2010-1 - 23.      In the same Order, the Grievance Committee dismissed Ms. O’Connor’s challenges to her

### Procedural history and key dates
- The Grievance Committee dismissed challenges to Ms. O’Connor’s 2006 and 2007 APRs and MARs on the ground that she had not initiated administrative review within six months of the contested decisions, pursuant to GAO No. 31. (Grievance Committee Order, pp. 10-12.)
- The Committee found evidence that Ms. O’Connor believed her ratings were inappropriate at the time she was given them, and that subsequent motivations (e.g., evidence allegedly acquired in or after December 2007 or concern about effects from the 2008 downsizing exercise) did not justify extending time limits. (Id., pp. 10-12.)
- The Committee rejected tolling of time limits on the basis that Ms. O’Connor had availed herself of informal dispute resolution through the Fund’s Ombudsperson during the period. (Id., pp. 10-12.)
- The Committee dismissed as outside its jurisdiction complaints relating to HRD’s handling of the administrative review process prior to filing the Grievance. (Id., pp. 13-14.)
- The Committee dismissed Ms. O’Connor’s claim that her 2008 APR and MAR were affected by retaliation because she had not taken prerequisite administrative review steps prior to raising the claim in her Grievance. (Id., pp. 13-14.)
- The Grievance Committee scheduled a merits hearing for November 30 and December 1, 2009 on the portion of the Grievance that remained pending. The Fund informed the Tribunal that a final decision by Fund Management was not expected before mid-March, 2010, at the earliest. (Post-hearing status.)
- Ms. O’Connor filed her Application with the Administrative Tribunal on August 3, 2009.
- The Administrative Tribunal issued its decision in Washington, D.C., February 8, 2010.

### Parties’ principal contentions — Applicant (merits)
- Applicant’s job functions and work performance are consistent with a position classification of Grade A11/A12 in a more pertinent career stream, with opportunities for career advancement.
- Applicant contends that the 2006 and 2007 APRs, while central to the job audit, provided misleading information to auditors and tainted the proceedings with impermissible racial bias.
- Applicant asserts an aggressive reduction in competency ratings and MAR without regard to performance or position standards; Applicant’s MAR was not consistent with her performance rating.
- Applicant alleges that her supervisor’s preparation of her 2006 APR rendered his recommendation to the job audit panel unreliable.
- Applicant alleges differential treatment based on race in the allocation of the May 2006 MARs, in violation of the Fund’s rules against discrimination.
- Applicant seeks relief:
  - rescission of the promotion decision of November 29, 2007;
  - promotion to the uppermost level of Grade A11 of the Information ladder, retroactive to November 1, 2007;
  - compensation for “stress, aggravation, insults, and lack of professional courtesies”;
  - punitive damages.
- Note: An additional claim that May 2008 APR and MAR were impermissibly affected by retaliation was asserted in the Application but withdrawn in Applicant’s Objection to the Motion for Summary Dismissal.

### Parties’ principal contentions — Respondent (admissibility)
- The Application should be dismissed in its entirety because Applicant has not exhausted all available channels of administrative review as required by Article V of the Tribunal’s Statute; Management has not rendered a final decision and the matter is not ripe.
- The job audit/promotion challenge is pending before the Grievance Committee, which will hear the “integrity of the job audit process”; the Tribunal should dismiss that claim without prejudice to Applicant’s right to submit a new application following completion of the Grievance Committee process and Management’s final decision.
- The Tribunal’s Statute does not authorize advisory opinions or retention of jurisdiction where Article V exhaustion has not occurred; retaining jurisdiction might encourage simultaneous filings.
- To the extent Applicant seeks to adjudicate the legality of May 2006 and May 2007 APRs and MARs as separate claims, those claims should be dismissed with prejudice for failure to initiate timely review under GAO No. 31.

### Applicant’s contentions on admissibility (summary)
- The Application addresses a matter separate from the claim accepted for review by the Grievance Committee.
- The claim is that racial discrimination in the May 2006 and May 2007 APR processes impermissibly affected the November 2007 job reclassification/promotion decision; Applicant challenges the “discrimination model” in her department since 2006.
- Applicant states she has “never requested review of the individual Annual Performance Reviews (APRs).”
- Applicant argues that use of the May 2006 and May 2007 APRs in the November 2007 job audit gives rise to a new claim with its own limitations period; each use of these documents is an instrument of recurring violations of the Fund’s rules against discrimination.

### Tribunal analysis — exhaustion of remedies and jurisdiction
- Article V, Section 1 of the Tribunal’s Statute requires exhaustion of available channels of administrative review before filing an application with the Tribunal; the Tribunal has recognized exhaustion is intended to give the administration full opportunity to address complaints. (Commentary on the Statute, p. 23; IMFAT precedents cited.)
- Where the Grievance Committee concludes it lacks jurisdiction and dismisses a grievance, the Tribunal’s practice applies the three month statute of limitations of Article VI as running from the Committee’s dismissal. (Citing Estate of Mr. “D”.)
- Difficulty arises when the Grievance Committee exercises jurisdiction over some claims but not others; Tribunal jurisprudence favors recourse to the Grievance Committee because it produces a detailed factual and legal record useful to the Tribunal. (Citing Ms. “Y”, Mr. M. D’Aoust, Ms. “Z”, Ms. “J”.)
- The Grievance Committee decides for itself whether it has jurisdiction; its determination is relevant but not necessarily dispositive of whether Article V exhaustion has been met by an applicant. (Citing Estate of Mr. “D”.)
- The Tribunal determined that Applicant’s challenge to the outcome of the job audit (a “regulatory” challenge) and her claim that the audit process was improper are closely allied; the Tribunal’s decision making would benefit from the Grievance Committee record on the latter claim and from Management’s final decision.
- Permitting the Tribunal to decide the job audit outcome before exhaustion of administrative review on the audit-process claim would undermine Article V’s twin goals of providing opportunities for resolution and building a detailed record for adjudication. (Citing Estate of Mr. “D”, para. 66.)

### Tribunal findings on the 2006 and 2007 APRs and MARs
- The Fund contends that any attempt by Applicant to adjudicate the legality of her 2006 and 2007 APRs as separate claims should be dismissed with prejudice for untimely initiation under GAO No. 31.
- Applicant insists she has never requested review of her individual APR reports and contends the Fund has reframed her complaint.
- The Tribunal concluded it could not properly render an advisory opinion by deciding “with prejudice” whether any challenge to the legality of the APR ratings is time-barred in the absence of a fully developed record and pleadings on the merits.
- The Tribunal indicated that the evidentiary and pleadings record developed in the administrative review proceedings would better inform any future Tribunal consideration of the significance of the 2006 and 2007 APRs in relation to a job reclassification challenge.

### Decision
- The Administrative Tribunal unanimously dismissed the Application in its entirety for failure to meet the requirement of Article V of the Statute.
- The dismissal was without prejudice to Applicant’s right to bring a new Application following the exhaustion of all available channels of administrative review pursuant to Article V of the Statute.

---


_Source: https://www.imf.org/-/media/files/imfat/j2010-1.pdf_