## j2011-1 — Introduction

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---

### Case background and parties
- Tribunal sittings: March 15 and 16, 2011.
- Tribunal composition: Judge Catherine M. O’Regan, President; Judges Nisuke Ando and Michel Gentot.
- Applicant: Ms. Charmion O’Connor (identifies as a black staff member).
- Respondent: International Monetary Fund.

### Applicant’s principal claims and requested relief
- Challenge to reclassification of position from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8.
- Allegations:
  - Reclassification, although a promotion, was inconsistent with job responsibilities and placed her in a career stream limiting future opportunities.
  - Job audit process was not carried out consistently with Fund rules.
  - Reclassification outcome was affected by discriminatory animus, improperly influenced by a 2005 job audit and by 2006 and 2007 Annual Performance Reviews (APRs) and Merit-to-Allocation Ratios (MARs).
  - 2006 and 2007 APRs and MARs, and the 2005 job audit, represent “continuing” harm and evidence a hostile work environment.
  - Retaliation for contesting the reclassification through the Fund’s dispute-resolution system.
- Relief sought:
  - Rescission of the contested decision.
  - Retroactive promotion from Grade A8 to Grade A11 in a job ladder Applicant believes better matches her responsibilities.
  - Monetary compensation and damages, including an additional increase of 3 percent per year over 20 years, and associated pension increases; compensation for stress and punitive damages.

### Respondent’s position and procedural defenses
- Asserted inadmissibility because Fund rules preclude challenge by incumbent staff to a job grading decision.
- Alternatively, if admissible, reclassification was a proper exercise of discretion, consistent with rules and free from discrimination or improper motive.
- Asserted MARs and performance ratings are not taken into account in the job grading process.
- Contended claims relating to 2006 and 2007 APRs and MARs, and related retaliation claims, were time-barred for failure to pursue timely exhaustion of administrative review channels as required by Article V of the Tribunal’s Statute.

### Procedural history and timeline
- August 23, 2010: Application filed with the Administrative Tribunal (registrar advised initial noncompliance; amended Application filed and brought into compliance; considered filed on original date for statute of limitations purposes).
- September 27, 2010: Application transmitted to Respondent.
- October 1, 2010: Applicant submitted supplemental request for production of documents.
- October 15, 2010: Registrar circulated notice within the Fund summarizing issues (Rule IV, para. (f)).
- November 12, 2010: Respondent filed its Answer.
- December 20, 2010: Applicant filed Reply.
- January 20, 2011: Respondent filed Rejoinder.

### Employment chronology and key dates
- First employed 1970–1983 at Grade A.
- Returned 1986 (contractual secretary); 1987 as staff at Grade A4, later Grade A5.
- 1989 promoted to Administrative Assistant at Grade A6.
- May 2002 promoted to Senior Administrative Assistant at Grade A7.
- November 2002 transferred to Immediate Office of a department; 2007 Job Audit Report noted assignment of new functions.
- September 17, 2007: PDQ submitted describing principal responsibilities.
  - Time allocations in PDQ:
    - 40 percent: design, test, and implement structured profile metadata and related EDMS Users Advisory Group work.
    - 28 percent: design, implement, and manage filing procedures involving physical records.
- November 1, 2007: effective date of promotion to reclassified position.
- November 29, 2007: Job Audit Report dated.
- December 4, 2007: decision communicated to Applicant by SPM.
- June 3, 2008: Applicant initiated formal administrative review (GAO No. 31).
- October 8, 2008: Grievance filed.
- April 24, 2009: Grievance Committee granted Fund’s motion to dismiss portions for lack of jurisdiction.
- April 22, 2010: Grievance Committee recommended denial of Grievance on merits; Fund Management accepted recommendation on May 20, 2010.
- March 16, 2011: Tribunal judgment delivered (Washington, D.C.).

---

### Requests for production of documents — Tribunal rulings
- Requested Document No. 1: “MAR ratings of the 22 black staff members” of Applicant’s department.
  - Respondent objections: irrelevance and privacy intrusion; MARs not used in job audit.
  - Tribunal findings:
    - Applicant failed to establish nexus between alleged MAR allocation discrimination and CBD reclassification decision.
    - CBD had access only to the “job content” section of the APR (prepared by Applicant), not performance or MAR ratings.
    - Statistical evidence alone without other evidence would not be probative in Applicant’s individual case.
  - Disposition: Requested Document No. 1 denied (denial on relevance grounds).
- Requested Documents Nos. 2–4: promotion histories for identified audit staff (lead auditors and peer reviewer).
  - Tribunal findings:
    - The identification of the auditors’ job title as Human Resources Officer was sufficient to determine conformity with guidance “Job Audit Reviews.”
    - Additional career-history details were denied as not relevant.
- Requested Document No. 5: “all of the records of each audit—the 2005 and the 2007 audits… printouts of my audit report throughout the document life cycle captured in all of the versions.”
  - Tribunal findings:
    - Applicant introduced no evidence that additional iterations beyond those in the record would be probative of corruption or lack of integrity.
    - Production of all versions would be unduly burdensome under Rule XVII, para. 2 without evidentiary basis.
  - Disposition: Requested Document No. 5 denied.

### Oral proceedings
- Applicant did not request oral proceedings.
- Tribunal reviewed transcripts from Grievance Committee proceedings (witnesses included Applicant; SPM; Deputy Division Chief of CBD; CBD auditors from 2007; a CBD staff member from 2005).
- Given the extensive written record and conclusions on claims beyond reclassification legality, Tribunal concluded oral proceedings would not be useful and declined to hold them.

---

### Job audit process, analyses, and outcome

### Materials reviewed and audit steps taken
- Audit team: two-person CBD job audit team examined:
  - PDQ,
  - “job content” section of two previous APRs (but not other APR aspects),
  - job standards for Archives/Records Management ladder,
  - comparator positions;
  - interviewed Applicant, immediate supervisor, and department SPM.
- Draft report reviewed by Senior Human Resources Officer and Deputy Chief of CBD.
- October 16, 2007: Draft Job Audit Report circulated to SPM for factual corrections.
- October 24 and 30, 2007: SPM challenged comparator analysis; CBD Deputy Chief reaffirmed position that duties did not justify promotion to Grade A8 in Archives/Records ladder, referencing April 2005 audit.

### CBD analyses, rationale, and final determination
- CBD characterized Applicant’s position as a “hybrid job” — aspects of Records/Archives and Office Services.
- Final Job Audit Report assigned position to Office Services branch at Grade A8 because:
  - Office Services job standard requires broad responsibilities, supervisory/managerial functions combined with independent responsibility for one or more specialized functions.
  - Applicant’s role involved specialized function (document and records management systems) and quality control reviews of office assistants’ work to ensure compliance with filing and data management standards.
- Outcome: reclassification to Senior Administrative Assistant (Office Services) at Grade A8, promotion effective November 1, 2007.

---

### Tribunal jurisdiction, admissibility, and exhaustion of remedies

### Jurisdiction and “administrative act”
- Tribunal held:
  - It has jurisdiction ratione personæ and ratione materiæ if a staff member is “adversely affected” by an “administrative act.”
  - Contesting reclassification of a position is a challenge to an “administrative act” within Article II.
  - The “adversely affecting” threshold is low; Applicant’s interest in promotion, remuneration, pension prospects, and career satisfies “adversely affected.”
- Concluded Fund cannot, by internal directive, carve out Tribunal jurisdiction; Tribunal may hear challenge to reclassification by incumbent.

### Role and value of Grievance Committee / exhaustion
- Tribunal recognized value of administrative review for record development.
- In light of Grievance Committee proceedings and record, Tribunal found no cause to require further exhaustion in these circumstances.
- Tribunal invited Fund to reconsider internal law to allow incumbents access to Director of HRD review but proceeded to address merits.

---

### Standard of review and approach to merits

### Standard applied
- Discretionary managerial decisions will be overturned only if shown to be:
  - arbitrary, capricious, discriminatory, improperly motivated,
  - based on an error of law or fact,
  - or carried out in violation of fair and reasonable procedures.
- Tribunal will:
  - assess compliance with Fund internal law and fair procedures;
  - examine whether decision was based on error of fact or law;
  - consider whether improper motive or discrimination affected the decision.
- Tribunal gives deference to HR expertise on technical job-classification matters and will not substitute its own technical judgment absent irregularity.

---

### Findings on process, facts, and motive

### Process and independence of CBD
- Tribunal findings:
  - CBD’s job audit process included two-person teams, review by senior CBD staff, and dialogue with the requesting department; this complied with “Job Audit Reviews” guidance.
  - Audit staff met qualifications; use of a two-person team and layered review did not prejudice Applicant.
  - CBD’s consideration of departmental input and subsequent accommodation did not constitute improper influence; final decision was taken by CBD.

### Use of prior 2005 audit
- 2005 Draft Job Audit Report was placed in Applicant’s file “for future reference.”
- Tribunal concluded the 2007 auditors reached their decision on different facts and independently of the 2005 audit; reference to 2005 audit by CBD Deputy Chief was responsive to departmental concern and not evidence of taint.

### Whether decision was based on error of fact or law
- Applicant’s contentions:
  - Duties since 2002 (information management innovation, metadata, Fund-wide work) warranted placement in Information Management ladder at Grade A11.
- CBD’s rationale:
  - Applicant’s job met Archives and Records ladder responsibilities only at a “base level.”
  - Information Management ladder comparators required functions (e.g., manipulation of data, Web site design) absent from Applicant’s PDQ.
  - Office Services classification provided best match and enabled promotion to Grade A8.
- Tribunal conclusion:
  - No material error of fact or law found in CBD’s approach.
  - Position reclassification decision reasonably reflected level and nature of Applicant’s responsibilities.

### Allegations of bad faith by managers
- Tribunal found Applicant’s departmental managers were supportive of promotion.
  - Lead auditor and SPM testimony characterized managers as advocating for promotion.
  - Auditors found nothing diminishing Applicant’s own PDQ or job description.
- Conclusion: record does not support assertion of bad faith by managers.

---

### Allegations of discrimination, APRs/MARs, retaliation, and timeliness

### APRs/MARs and causal link to reclassification
- Applicant alleged 2006 and 2007 APRs and MARs were tainted by racial bias and influenced the audit.
- Evidence and Tribunal findings:
  - Auditors review only the “job content” section of APRs (prepared by Applicant); performance ratings and MARs are not used in job audit process.
  - Applicant did not rebut testimony that only APR “job content” portion was provided to auditors.
  - Tribunal found no nexus between alleged discriminatory allocation of APR/MAR ratings and CBD’s reclassification decision.

### Retaliation claim and exhaustion
- Applicant’s retaliation allegations arose after administrative review initiation.
- Tribunal concluded exhaustion requirements were not met for retaliation claims and did not reach merits.

### Timeliness, “discovery rule,” and “recurring use” theory
- Applicant delayed initiating administrative review of 2006 and 2007 APRs/MARs until June 3, 2008; GAO No. 31 prescribes a six-month period.
- Tribunal found facts did not constitute exceptional circumstances to excuse untimeliness.
- Applicant’s “recurring use” theory (that APRs/MARs and audits “trail” a staff member and are recurring acts) was not needed to be decided because APRs/MARs were not used in the reclassification process and 2005 audit complaints were not substantiated.
- Tribunal found Applicant did not establish a pattern of discrimination or hostile work environment on the record.

---

### Relief sought, Tribunal conclusions, and decision

### Applicant’s claimed harms and requested remedies (selected numeric specifics preserved)
- Requested retroactive promotion to Grade A11 effective November 1, 2007, including Fund’s structural increase and associated pension increase.
- Requested additional increase of 3 percent per year over 20 years, and associated pension increase.
- Sought compensation for stress and punitive damages.

### Tribunal conclusions
- Jurisdiction and standing:
  - Tribunal has jurisdiction to consider Applicant’s challenge to reclassification.
- Merits:
  - The decision to reclassify Applicant’s position from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8:
    - was not affected by procedural error;
    - was not based on an error of fact or law;
    - was not motivated by discriminatory animus or other improper motive;
    - was a reasonable decision taken after consideration of relevant evidence by persons trained to apply job grading criteria.
- Additional claims:
  - Claims based on 2006 and 2007 APRs and MARs, retaliation, continuing discrimination, hostile work environment, and career mismanagement were dismissed for lack of admissible basis or failure to exhaust administrative remedies where required.
- Final determination: Applicant failed to demonstrate that the Fund abused its discretion; no grounds for substituting Tribunal judgment for decisionmakers’ determination.

### Decision
- Application of Ms. Charmion O’Connor: denied (unanimous).
- Judgment signatories and formalities:
  - Catherine M. O’Regan, President
  - Nisuke Ando, Judge
  - Michel Gentot, Judge
  - Celia Goldman, Registrar
  - Washington, D.C., March 16, 2011

*Administrative Tribunal of the International Monetary Fund, j2011-1 (Judgment delivered March 16, 2011).*

### Introduction

### j2011-1 - Introduction

### Case background and parties
- On March 15 and 16, 2011, the Administrative Tribunal of the International Monetary Fund, composed for this case of Judge Catherine M. O’Regan, President, and Judges Nisuke Ando and Michel Gentot, met to adjudge the Application brought against the International Monetary Fund by Ms. Charmion O’Connor, a staff member of the Fund.
- Applicant: Ms. Charmion O’Connor, who identifies herself as a black staff member.
- Respondent: International Monetary Fund (the Fund).

### Applicant’s principal claims and requested relief
- Challenge to the Fund’s decision to reclassify her position from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8.
- Allegations:
  - The reclassification, although a promotion, was inconsistent with the nature and level of her job responsibilities and placed her in a career stream that limits future career opportunities.
  - The job audit process was not carried out consistently with Fund rules.
  - The reclassification outcome was affected by discriminatory animus, improperly influenced by a 2005 job audit and by her 2006 and 2007 Annual Performance Reviews (APRs) and Merit-to-Allocation Ratios (MARs).
  - The 2006 and 2007 APRs and MARs, and the 2005 job audit, represent a “continuing” harm and evidence a hostile work environment.
  - She experienced retaliation for contesting the reclassification decision through the Fund’s system for the resolution of staff disputes.
- Relief sought:
  - Rescission of the contested decision.
  - Retroactive promotion from Grade A8 to Grade A11 in a job ladder she believes better matches her work responsibilities.
  - Monetary compensation and damages.

### Respondent’s position and procedural defenses
- Respondent asserts:
  - The challenge to the job grading decision should be dismissed as inadmissible because Fund rules preclude a challenge by the incumbent staff member to a job grading decision.
  - Alternatively, if admissible, the claim should be denied on the merits: the reclassification represented a proper exercise of discretionary authority, carried out in accordance with applicable rules and free from discrimination or improper motive.
  - Merit-to-Allocation Ratios (MARs) and performance ratings are not taken into account in the job grading process.
  - Claims relating to 2006 and 2007 APRs and MARs, and related retaliation claims, should be dismissed for failure to pursue timely exhaustion of administrative review channels as required by Article V of the Tribunal’s Statute.

### Procedural history and timeline
- August 23, 2010: Ms. O’Connor filed an Application with the Administrative Tribunal.
- Registrar advised Application initially did not fulfill Rule VII requirements; Applicant filed an amended Application and was given extensions; Application brought into compliance and is considered filed on the original date for statute of limitations purposes.
- September 27, 2010: Application transmitted to Respondent.
- October 1, 2010: Applicant submitted a supplemental request for production of documents; request transmitted to Respondent at instruction of the President.
- October 15, 2010: Registrar circulated a notice within the Fund summarizing the issues raised in the Application (pursuant to Rule IV, para. (f)).
- November 12, 2010: Respondent filed its Answer.
- December 20, 2010: Applicant submitted her Reply.
- January 20, 2011: Fund’s Rejoinder filed.

### Requests for production of documents (Applicant’s requests)
- Applicant requested production pursuant to Rule VII, para. 2(h) and Rule XVII. Requested items included:
  1. “MAR ratings of the 22 black staff members” of Applicant’s department as identified by Applicant in her Application.
  2. Promotion history for the staff member identified by the Fund as the “lead auditor” for the 2007 job audit, from January 2004-present, and the positions she occupied in HRD with effective dates.
  3. Promotion history for the staff member identified by the Fund as the “lead auditor” for the 2005 job audit, from 1999-2005, and the positions she occupied in HRD with effective dates.
  4. Promotion history for the staff member identified by the Fund as the “peer reviewer” auditor for the 2005 job audit, from January 2004 to retirement, and the positions she occupied in HRD with effective dates.
  5. “[A]ll of the records of each audit—the 2005 and the 2007 audits… include the printouts of my audit report throughout the document life cycle captured in all of the versions . . . so that I can see how the document was changed from the first draft through the various stages.” (Emphasis in original.)

### Tribunal’s consideration and rulings on document requests
- Requested Document No. 1 (MAR ratings of the 22 black staff members)
  - Respondent’s objections: (a) requested information is irrelevant to the claims properly at issue; (b) disclosure would infringe privacy interests of staff members concerned.
  - Respondent asserted MARs are not used and have no role in the job audit process.
  - Applicant’s position: MAR ratings are relevant to establishing a pattern of racial discrimination in allocation of MARs by departmental management; she alleged her informal survey showed black staff were disproportionately accorded lower ratings; she argued the May 1, 2006 APR and MAR tainted the November [2007] job audit and that APRs were vehicles for a “multi-year racial discrimination staffing model.”
  - Tribunal findings:
    - Applicant failed to establish a nexus between alleged discrimination in allocation of MAR ratings and the CBD decision to reclassify her position.
    - CBD had access only to the “job content” section of the APR (prepared by Applicant herself), and not to her performance or MAR ratings.
    - Testimony refuted Applicant’s claim that her supervisor’s input was unreliable; his information confirmed Applicant’s own job description.
    - Tribunal jurisprudence indicates statistical information alone, absent other evidence, would not be probative of discrimination in Applicant’s individual case (citing D’Aoust (No. 2), IMFAT Judgment No. 2007-3, para. 137 and related authority).
    - Conclusion: the MAR data requested was not relevant; Requested Document No. 1 is denied. Given denial on relevance grounds, Tribunal did not consider the privacy objection.
- Requested Documents Nos. 2, 3 and 4 (promotion histories of audit staff)
  - Respondent identified the persons it characterized as the “lead auditors” for the 2007 and 2005 audits and the “peer reviewer” for 2005 as holding the title of Human Resources Officer at the time of those audits.
  - Applicant sought additional career-history details to establish that CBD staff lacked requisite qualifications to carry out job audits.
  - Tribunal findings:
    - Job title at time of audit (“Human Resources Officer”) is relevant to whether job audits were carried out consistently with Fund rules.
    - The Fund’s identification of the “lead auditors” as Human Resources Officers met the request to the extent necessary to establish conformity with the Fund’s guidance “Job Audit Reviews,” which states a “Human Resources Officer from the Compensation and Benefits Policy Division” conducts the job audit.
    - The request for additional career-history information about the auditors (and the peer reviewer) was denied as not relevant to the issues of the case. See Rule XVII, para. 2.
- Requested Document No. 5
  - The Introduction records the request and frames it, but the Tribunal’s ruling on Requested Document No. 5 is not recorded in the supplied Introduction excerpt.

### Additional allegations considered for later analysis
- Applicant also alleges discrimination, career mismanagement, a hostile work environment, and retaliation; these additional allegations are noted for consideration in subsequent parts of the adjudication (issues identified for further consideration: whether reclassification decision was affected by discrimination or other improper motive; whether reclassification decision was taken consistently with Fund internal law and fair and reasonable procedures; allegations of discrimination, hostile work environment, and career mismanagement).

*Administrative Tribunal of the International Monetary Fund, Introduction to Judgment j2011-1.*

### 20.      Requested Document No. 5 is for “all of the records of each audit—the 2005 and 2007

### j2011-1 - 20.      Requested Document No. 5 is for “all of the records of each audit—the 2005 and 2007

### Requested Document No. 5 — Applicant’s request and Tribunal decision
- Applicant sought “all of the records of each audit—the 2005 and 2007 audits . . . includ[ing] the printouts of my audit report throughout the document life cycle captured in all of the versions . . . so that I can see how the document was changed from the first draft through the various stages.” (Emphasis in original.)
- Applicant asserted the requested documents would “. . . support my case that there was lack of integrity in the audit process that created the position decision and . . . confirm my argument that my supervisors downplayed the role I played in establishing and implementing a new electronic filing system and the documents management system, among others.”
- The Fund stated it produced all responsive hard copy documents during the Grievance proceedings and argued Applicant provided no basis to require additional “earlier versions” of the audit reports from the computer system, noting that “[t]here could be numerous such versions, which are created each time the document author works on the document and saves a new draft version.”
- Tribunal finding:
  - Applicant introduced no evidence that additional iterations of the Job Audit Report beyond those already in the record would be probative of issues before the Tribunal, including the contention of “corruption” or “lack of integrity.”
  - Requiring production of all versions “throughout the document life cycle captured in all of [its] versions” would be “unduly burdensome” under Rule XVII, para. 2 in the absence of evidentiary basis.
  - Applicant’s citation of Ms. “J”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2003-1 (September 30, 2003), para. 11, was found inapposite because that judgment granted a document request on relevancy grounds not present here.
- Disposition: Requested Document No. 5 was denied.

### Oral proceedings — requests, prior hearings, and Tribunal decision
- Governing provisions:
  - Article XII of the Tribunal’s Statute: Tribunal shall “. . . decide in each case whether oral proceedings are warranted.”
  - Rule XIII, para. 1 of the Rules of Procedure: oral proceedings shall be held “. . . if . . . the Tribunal deems such proceedings useful.”
- Parties’ positions:
  - Applicant did not request oral proceedings.
  - The Fund stated in its Rejoinder that it would favor oral proceedings only if the Tribunal considered the merits of allegations the Fund contends Applicant failed to exhaust administratively—specifically, challenges to her APR and MAR ratings, a generalized allegation of discrimination in her career, and the claim of retaliation—so as to develop an evidentiary record on those issues.
- Record considered:
  - The Tribunal reviewed transcripts of oral proceedings before the Fund’s Grievance Committee on both admissibility and merits related to Applicant’s grievance and allegations of corruption and lack of integrity in the 2007 position reclassification.
  - At the Grievance Committee merits hearing, testimony was given by: Applicant; the Senior Personnel Manager (SPM) of Applicant’s department; the Deputy Division Chief of CBD; both CBD staff members who comprised the 2007 job audit team in Applicant’s case; and one CBD staff member from the 2005 audit team.
  - The Tribunal is “. . . authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” (Mr. M. D’Aoust, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1996-1 (April 2, 1996), para. 17.)
- Tribunal decision: given the extensive written record and its conclusions on claims beyond the reclassification legality, the Tribunal decided oral proceedings would not be useful and declined to hold them.

### Factual background — employment history and procedural timeline
- Employment chronology and grades:
  - Applicant first employed by the Fund beginning in 1970 at Grade A and served until 1983.
  - Returned in 1986 on a contractual appointment as a secretary; beginning in 1987 as staff at Grade A4, later Grade A5.
  - In 1989 promoted to Administrative Assistant at Grade A6.
  - In May 2002 promoted to Senior Administrative Assistant at Grade A7.
  - In November 2002 transferred to a new position in the Immediate Office of a department; 2007 Job Audit Report noted she “. . . was assigned new functions, tasks and projects.”
  - At the time of the Application, Applicant held title Senior Administrative Assistant (Secretary, Division) at Grade A7. (Job Audit Report, November 29, 2007, p. 1.)
- 2005 job audit:
  - Department proposed reclassification from Senior Administrative Assistant at Grade A7 to Senior Records Assistant at Grade A8.
  - CBD (Compensation and Benefits Policy Division) concluded position should retain assigned grade but change title to Records Assistant to “properly depict the nature of assigned responsibilities.” (Draft Job Audit Report, April 5, 2005, p. 1.)
  - No promotion was recommended; department was advised of opportunity to withdraw request to preserve the right to re-propose before applicable time bar. Department withdrew the request.
  - Draft Job Audit Report placed in Applicant’s file “for future reference.” (Email communication of April 11, 2005.)
- 2006–2007 developments:
  - In 2006 Applicant’s department merged with another, creating a larger department.
  - Early 2007 Applicant approached SPM requesting appropriate recognition in the position classification system. SPM supported re-submission, citing larger department and more complex responsibilities. (Grievance Committee Hearing, 11-30-09 and 12-1-09, Tr. 237-238; Tr. 254.)
  - SPM and Applicant considered alternatives; budget constraints and competitive risks made pursuing a PDQ and reclassification the “safer” route. (Tr. 269-271; Tr. 271.)
- PDQ and task allocation (PDQ, September 17, 2007):
  - Applicant described primary purpose: “to provide a framework for an integrated system for electronic and physical documents storage, management, and retrieval in [my department] and to implement the system department-wide.” (PDQ, September 17, 2007, p. 1.)
  - Applicant listed preparation of training manuals, participation in Fund-wide working groups and policy-making on behalf of the department. (Id., pp. 2-3.)
  - Percentage of time on principal responsibilities:
    - 40 percent: “[c]onceptualize, design, test, and implement structured profile metadata such as naming conventions . . . for [her department’s] documents and through the auspices of the EDMS Users Advisory Group, for the Fund.” (Id., p. 3.)
    - 28 percent: “design, implement, and manage” filing procedures involving physical records. (Id., p. 3.)
  - Applicant listed contacts both internal and external (Id., p. 7) and described significant changes since last PDQ, including merger to a department “considerably larger with a staff of 250, 15 Divisions, and an even more complex array of topics and functions.” (Id., p. 8.)
- PDQ processing:
  - Applicant’s supervisor added “a sentence” and “two editorial corrections” before approving the PDQ. (Tr. 261, 432-433.)
  - Division Chief (on behalf of supervisor) and SPM signed PDQ September 17, 2007. (PDQ, p. 9.)
  - Department transmitted PDQ to CBD requesting reclassification from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Archives/Records Assistant at Grade A8. (2007 Job Audit Report, p. 1.)

### Job audit process, analyses, and outcome
- Audit team and materials reviewed:
  - Two-person CBD job audit team examined PDQ, the “job content” section of two previous APRs (but not other APR aspects), job standards for Archives/Records Management ladder, and comparator positions; interviewed Applicant, immediate supervisor, and the department SPM. (Tr. 106, 147-148, 160-161, 284-285.)
  - Auditors prepared a draft report reviewed by CBD Senior Human Resources Officer and Deputy Chief of CBD.
- Draft report circulation and department input:
  - October 16, 2007: CBD Deputy Division Chief circulated Draft Job Audit Report to SPM, inviting factual corrections for an “unfavorable” draft. (Memorandum from CBD Deputy Chief to SPM, October 16, 2007.)
  - October 24, 2007: SPM memo challenged CBD’s comparator analysis, arguing department’s material diversity and complexity warranted grade range A7-A8 and that incumbent should be assigned grade A8. (Memorandum from SPM to CBD Deputy Chief, October 24, 2007.)
  - October 30, 2007: CBD Deputy Chief reaffirmed CBD’s position that duties did not justify promotion to Grade A8 in Archives/Records ladder and referenced April 2005 audit which had recommended Records Assistant at Grade A7. (Memorandum from CBD Deputy Chief to SPM, October 30, 2007.)
- Meeting and report redrafting:
  - A meeting including SPM, supervisor, CBD Deputy Chief, promotion team leader, and lead auditor led to redrafting of the Job Audit Report. (Tr. 164, 244.)
  - SPM reported expressing frustration but accepting limits to influence; Senior Human Resources Officer suggested seeking promotion via Office Assistant career ladder to achieve promotion to A8. (Tr. 245-246.)
- CBD analyses and rationale:
  - Draft and final reports drew on Applicant’s PDQ and time allocations.
  - CBD determined Applicant’s position was a “hybrid job” not solely Records Assistant and compared it with job standards and comparator positions in both Archives/Records Management ladder and Office Assistance ladder. (2007 Job Audit Report, pp. 3-4.)
  - CBD view: position met Records and Archives ladder responsibilities only at the “base level,” insufficient for promotion to Grade A8; Secretary branch of Office Assistance ladder ordinarily reserves Grade A8 for “front office” departmental secretaries with supervisory responsibilities. (Tr. 172-175.)
  - Final Job Audit Report rationale for assignment to Office Services branch at Grade A8:
    - The Office Services job standard requires broad responsibilities, supervisory and managerial functions combined with independent responsibility for one or more specialized functions.
    - Applicant’s position involved a specialized function—document and records management systems—and supervisory function in the form of quality control reviews of office assistants’ work to ensure compliance with Fundwide and department-wide filing and data management standards. (Job Audit Report, p. 8.)
- Outcome:
  - Result of the 2007 audit: reclassification of Applicant’s position to Senior Administrative Assistant (Office Services) at Grade A8.
  - Decision communicated to Applicant by her SPM at a meeting of December 4, 2007.

*IMF Administrative Tribunal judgment (IMFAT) and accompanying job audit records as summarized above.*

### 47.      According to the testimony of the SPM, he did not hear again from Ms. O’Connor and

### j2011-1 - 47.

### Background and chronology
- According to the testimony of the SPM, he did not hear again from Ms. O’Connor and although he told her she could reject the promotion she never did. The SPM recalled that while she expressed some disappointment at the results of the job audit, she did not reject the promotion. Accordingly, when he was contacted by CBD several days later to finalize Applicant’s promotion to the new grade and job title, he gave the “final okay.” (Tr. 247-250, 277-281.)
- Applicant states that she told the SPM that she “could not accept such a job title and job ladder” and that she then complained to a Deputy Director of her department.
- It is not disputed that Applicant’s department did not invoke the review procedures available under the guidance “Job Audit Reviews,” which provides that “. . . when irreconcilable differences of opinion arise between a department and CBD concerning the classification of a position, the department may request that the Director of the Human Resources Department (HRD) review CBD’s decision.”
- On November 29, 2007, Applicant was promoted to Grade A8 in the reclassified position, with effect from November 1, 2007.

### Administrative review and Grievance Committee proceedings
- On June 3, 2008, Applicant initiated formal administrative review pursuant to GAO No. 31, alleging:
  - decisions and actions by her department and HRD “negatively influenced the outcome” that were “arbitrary, capricious, discriminatory, and inconsistent with the Fund’s rules and regulations”; and
  - managers in her department improperly interfered with HRD’s audit process.
- Applicant alleged the reclassification to Senior Administrative Assistant (Office Services) at Grade A8 was inconsistent with her functions and accomplishments and raised a question of racial bias:
  - she asserted that her May 2006 and 2007 APRs “lacked credibility and misinformed my November 1, 2007 job audit” and that 86 percent of the 22 black staff members in her department received performance ratings “at the lowest end of the scale”; she alleged a departmental “strategic objective” to change the “racial profile” of the new department after the merger.
- On July 7, 2008, the Director of Human Resources denied administrative review:
  - ruled job audit decisions may be challenged only by the affected department, so Applicant lacked standing to contest the job audit; and
  - concluded Applicant failed to raise challenges to her May 2006 and May 2007 APRs within the six-month period prescribed by GAO No. 31; the request was denied in its entirety on jurisdictional grounds.
- On October 8, 2008, Applicant filed a Grievance setting out five claims:
  1. departmental managers provided misinformation to prejudice her chances of appropriate Grade and salary, career stream, and advancement;
  2. discriminatory decisions substantially affected the job audit outcome, and the May 1, 2006 assessment was part of a pattern of racial discrimination;
  3. HRD contravened Fund rules by accepting a “distorted view” of her job from department managers;
  4. complaint about HRD’s handling of her administrative review request; and
  5. retaliation for seeking review of her claims.

- The Fund moved to dismiss the Grievance for lack of jurisdiction; on April 24, 2009, the Grievance Committee granted the Fund’s motion in all but one respect.

### Grievance Committee findings on jurisdiction and merits
- The Committee reiterated that the Grievance Committee’s jurisdiction is confined to application of rules and is precluded from hearing challenges to the validity of Fund rules themselves; because Fund rules provide that incumbents and immediate supervisors are not entitled to request a review of a job grading decision made by CBD, the Grievant could not challenge the job grading “decision.”
- The Committee distinguished between:
  - a challenge to the audit decision itself (outside its jurisdiction), and
  - allegations that management provided false and misleading information to job auditors that impugned the “integrity of the audit process” (within its jurisdiction).
- The Committee limited admissible inquiry to “only specific evidence of corruption and lack of integrity in the process.”
- The Committee dismissed Applicant’s challenges to her 2006 and 2007 APRs and MARs for failure to initiate administrative review within six months as required by GAO No. 31, rejecting arguments to toll time limits based on informal dispute resolution via the Ombudsperson.
- The Committee dismissed complaints relating to HRD’s handling of administrative review prior to filing the Grievance and dismissed the retaliation claim tied to the 2008 APR and MAR ratings for lack of prerequisite administrative review steps.
- On April 22, 2010, after merits hearings on the integrity claim, the Grievance Committee concluded that Applicant had not established any corruption or lack of integrity in the job audit process and recommended denial of the Grievance; Fund Management accepted that recommendation on May 20, 2010.

### Administrative Tribunal proceedings and admissibility decision
- Applicant filed a 2009 Application with the Administrative Tribunal while some Grievance Committee proceedings remained pending. The Fund moved for summary dismissal under Article V of the Tribunal’s Statute for failure to exhaust administrative review channels.
- The Tribunal framed the admissibility issue where a claim dismissed by the Grievance Committee as outside its jurisdiction is closely related to a different claim still pending before that Committee.
- The Tribunal found Applicant’s claims that (i) her job deserved a higher grade and different career stream and (ii) the audit process was improper were “closely allied.” (IMFAT Judgment No. 2010-1 (February 8, 2010), para. 40.)
- The Tribunal held that its decision-making would benefit from the record developed in the Grievance Committee and that the Grievance Committee’s hearing, recommendation, and Fund Management’s final decision must be permitted to take their course; accordingly, the Tribunal dismissed the 2009 Application in its entirety without prejudice to Applicant’s right to bring a new Application after exhaustion of administrative review pursuant to Article V.

### Parties’ principal contentions
- Applicant’s principal contentions (summarized):
  1. Tribunal should not dismiss the challenge to the job audit decision on jurisdictional grounds because review limited to department requests may unjustly deny redress.
  2. The job audit outcome did not represent a proper classification and grading based on content, functions, and responsibilities.
  3. HRD’s Compensation and Benefits Policy Division failed to carry out the job audit consistent with Fund rules; the audit was affected by corruption and lack of integrity.
  4. Departmental managers misled auditors, acted in bad faith, and were improperly motivated by racial discrimination.
  5. The 2005 job audit tainted the 2007 reclassification decision; Applicant challenges the 2005 audit and its continued use.
  6. Applicant experienced retaliation for challenging the reclassification; this claim should not be dismissed for failure to exhaust remedies.
  7. The 2006 and 2007 APRs were tainted by corruption and racial discrimination; they affected promotion and career.
  8. Longstanding discrimination prevented proper classification based on duties over many years; this claim should not be dismissed for failure to exhaust remedies.
  9. Career advancement mismanagement resulted from failure to properly classify and compensate Applicant; the breach of the right to be properly classified is “continuing.”
  10. Relief sought includes:
    - promotion to the uppermost level of Grade A11 retroactive to November 1, 2007, including Fund’s structural increase and associated increase in pension benefits;
    - additional increase of 3 percent per year over 20 years, and associated pension increase;
    - compensation for “stress, aggravation, insults, disrespect, lack of professional courtesies . . .”; and
    - punitive damages to “make people aware that this behavior is not acceptable.”

- Respondent’s principal contentions (summarized):
  1. Applicant’s challenge to job reclassification process and outcome should be dismissed as inadmissible because Fund rules preclude incumbent challenges.
  2. If admissible, the challenge should be denied on the merits; reclassification was based on proper considerations and process.
  3. Departmental and CBD staff acted in good faith and sought a positive outcome for Applicant consistent with Fund rules.
  4. Job audit process for Applicant was carried out consistently with governing procedures; claims of corruption or lack of integrity are unfounded.
  5. Allegation that the 2007 audit was corrupted by reliance on the 2005 audit is “misplaced.”
  6. Retaliation claim should be dismissed for failure to exhaust channels of administrative review per Article V of the Tribunal’s Statute.
  7. Allegations about the 2006 and 2007 APRs and alleged retaliatory treatment should not be accepted as evidencing a “pattern” of corrupt or discriminatory behavior relevant to the central claim.
  8. Direct challenges to 2006 and 2007 APRs should be dismissed for failure to pursue timely exhaustion of administrative review as required by Article V.
  9. Applicant’s career prospects have not been harmed by the job audit, reclassification, or subsequent promotion.

### Relevant provisions of the Fund’s internal law (excerpt)
- GAO No. 11, Rev. 4 (Grading of Positions, Assignment of Staff, and Salary Administration) (January 16, 2004):
  - Section 3. Authority for the Grading of Positions and the Assignment of Staff Members:
    - 3.02 Grading of A1–A15 Positions. The grading of positions at Grades A1–A15 is subject to the authority of the Director of Human Resources, after consultation with the relevant Department Head in which the position is located.
  - Section 4. Grading of A1–A15 Positions: Policy and Responsibilities:
    - 4.01 Grading of Positions. The Director of Human Resources shall be responsible for maintaining, and modifying as appropriate, a system for grading positions, the purpose of which is to provide a consistent basis—across departments and in respect to different career streams—for establishing the level of positions and differentiating among levels on grounds of job content (the functions, duties, and responsibilities of positions), and qualifications. After consultation with departments, the Director of Human Resources shall assign a specific grade or range of grades to each position within a ‘job ladder,’ and may assign grade complements for the department.
  - Footnote on position complements: Position complements control the number of positions that may be classified in a particular grade or grade band on the basis of numeric limits of any grade; such controls reflect the underlying job content of the positions.

*Source: Applicant v. International Monetary Fund; Grievance Committee and IMF Administrative Tribunal materials as summarized in j2011-1 - 47.*

### 4.02 Information for Staff. The Director of Human

### j2011-1 - 4.02 Information for Staff. The Director of Human

### Information for staff and departmental responsibilities
- The Director of Human Resources shall make available to staff information on:
  - the grading structure;
  - the methods employed to establish the grades of positions; and
  - the typical job content of grades and positions,
  - in the form of job standards, announcements of vacant positions, position descriptions, and other means. (4.02)
- Heads of Departments are responsible for:
  - (i) defining and documenting the job content of each position in their department;
  - (ii) maintaining consistency between the defined job content and the duties actually performed by the staff members assigned to the positions; and
  - (iii) if established, monitoring the departmental position complements. (4.03)

### Types of promotion and promotion procedures (GAO No. 11, Rev. 4, Section 5)
- Promotion to a higher grade for an A-Level staff member may occur through:
  - (a) a career-progression promotion;
  - (b) a selective promotion; or
  - (c) the reclassification of a position. (5.08)
- Where position complements have been established, promotions are possible only if the departmental position complements are sufficient to allow the promotion. (5.08)
- Career-progression promotion (5.08.1):
  - Applies when there is an established range of two or more grades for a position.
  - A staff member may be promoted within that range, without competing with others, if he or she performs the duties and meets the qualifications and promotion requirements for the higher grade.
- Selective promotion (5.08.2):
  - Occurs when a staff member is selected for a new or vacant position at a higher grade following an established selection and assessment procedure.
  - Such promotions may be subject to special terms and conditions in accordance with Section 5.02.
- Promotion resulting from reclassification of a position (5.08.3):
  - A position may be reclassified at a higher grade if the Managing Director or the Director of Human Resources determines that the established grade no longer corresponds to the job content.
  - The incumbent of a reclassified position shall be promoted to the higher grade unless he or she does not meet the qualifications and requirements for promotion into the higher grade, including required standards of performance; in that case the incumbent shall continue on an "underfill" basis as provided in Section 5.03.
  - In determining whether the staff member meets the requirements, the Managing Director or the Director of Human Resources shall consult with the Head of the staff member’s department. (Emphasis supplied.)

### Promotion policy for non-managerial A-Level positions (Staff Bulletin No. 03/3)
- To be considered for promotion to positions at Grades A1–A14, a staff member must:
  - (a) be promoted within the grade band of their current position, or
  - (b) be in a position that is reclassified at a higher grade, or
  - (c) apply and be selected for a vacant position at a higher grade.
- Promotions in positions that span several grades:
  - A staff member may be promoted in his or her current position to the next higher grade when the position is classified at a range of grades (examples given: economist, Grades A12/A13/A14; research officer, Grades A9/A10/A11) and the incumbent’s current grade is below the highest grade in the range.
- Promotions resulting from reclassifications:
  - A staff member may be promoted in his or her current position to a higher grade if duties and responsibilities have increased sufficiently to justify reclassification and the incumbent meets the qualifications and requirements for the higher grade.
  - Such cases typically require supporting documentation and an audit conducted by HRD’s Compensation and Benefits Division (CBD).
  - These reviews are conducted as part of the May or November promotion cycle.
- Process for promotions in the established grade range and upon reclassification:
  - Because these promotions do not involve position vacancies, they do not have to be advertised in the Career Opportunities (CO).
  - Such promotions can take place only during the May or November promotion cycle.
  - Promotion process steps:
    - The department submits to HRD, Staff Development Division (SDD) a list of all staff members recommended for promotion.
    - If a job audit is required, the recommending department also submits an updated Position Description Questionnaire (PDQ) to CBD with a copy to SDD; CBD assesses whether responsibilities warrant reclassification.
    - SDD reviews promotion recommendations to verify consistency with the promotion policy.
    - HRD conveys final promotion decisions to departments; approved promotions are effective on May 1 or November 1. (Emphasis supplied.)

### Job Audit Reviews (Intranet posting of the Human Resources Department)
- Circumstances that normally prompt job audit reviews:
  - Progression from band to band;
  - Progression to a grade above the highest grade assigned to a position when it was originally advertised;
  - Significant changes (sustained over a period of at least one year) in the duties and responsibilities assigned to a position.
- Who conducts the job audit:
  - A Human Resources Officer from the Compensation and Benefits Policy Division.
- Purpose of an audit:
  - To gain a better understanding of the changes in duties and responsibilities and their impact on job value.
- Typical audit steps:
  1. HR Officer reviews job information and supporting documentation submitted by the department.
  2. HR Officer asks questions and may discuss the position with the incumbent, immediate supervisor, and others knowledgeable about the position.
  3. HR Officer assesses the position’s responsibilities based on relevant job standards and comparisons with similar positions; drafts a job audit report and discusses it with the Compensation and Benefits Policy Division before finalizing.
  4. Job grading decision communicated to the department through the Senior Personnel Manager; the incumbent is informed through the supervisory hierarchy.
- Interview focus and preparation guidance:
  - Focus of questions: difficulty and complexity of work; non-supervisory responsibilities; supervisory/managerial responsibilities.
  - Interview normally takes between 45 minutes and an hour, but sometimes more or less time is required.
  - Preparation suggestions: set aside uninterrupted time; familiarize with the Position Description Questionnaire and other job information; be prepared to describe or demonstrate work and provide examples of work product.

### Procedures for review of position classification decisions
- CBD analyzes and evaluates new positions and conducts audits of encumbered positions (normally in conjunction with the May 1 and November 1 promotion cycles).
- When promotion requests are not endorsed on the basis of a job audit:
  - CBD conveys its decision and provides a draft audit report to the Senior Personnel Manager so the department can verify accuracy of duties and responsibilities captured.
  - The department may present additional documentation on job content factors it deems inadequately weighed and request reconsideration.
  - CBD may reverse or maintain its initial recommendation after review of additional information.
- Review by the Director of the Human Resources Department:
  - If differences of opinion persist between a department and CBD, the department may request a review by the Director of HRD.
  - The request must be made in writing by the Senior Personnel Manager (on behalf of the Department Director) within 30 days after receiving the finalized audit report from CBD.
  - The request must clearly indicate job content factors the department deems not to have been adequately weighed by CBD.
  - Neither incumbents nor their immediate supervisors are entitled to request a review of a job grading decision made by CBD.
  - The Director of HRD may review the case herself, refer it to a senior staff member outside CBD, or engage an external consultant with expertise in job classification systems similar to the Fund's.
  - Reviews examine whether relevant information was taken into account and whether grading rules and criteria (including grade bands and complements) were accurately applied.
- Review by an external consultant:
  - If the Director of HRD confirms CBD's classification and the requesting department remains convinced the position is inappropriately classified, the case may be referred for external review.
  - The consultant’s role is to analyze whether the process by which CBD reached its decision was equitable and defensible; the consultant does not override CBD’s decision by personal judgment.
  - The consultant may discuss the case with CBD, the Senior Personnel Manager, and if necessary the incumbent and/or immediate supervisor.
  - Upon completion, the consultant submits a written report to the Director of HRD, who communicates the final decision to the requesting department.
- Timing of subsequent requests for reclassification:
  - If CBD's classification is confirmed through review, the position will not be reviewed again for at least two years, unless significant new responsibilities have been assigned as a result of a major reorganization of the work unit.
  - In such reorganization cases, an audit would not take place until the incumbent has been carrying out the additional responsibilities for at least one year. (Emphasis supplied.)

### Case consideration: reclassification of Senior Administrative Assistant position — admissibility issues
- Principal factual/legal issue framed:
  - Whether the Fund abused its discretion in reclassifying Applicant’s position from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8. (Para. 71)
- Procedural background and admissibility arguments:
  - The intranet “Procedures for the Review of Position Classification Decisions” expressly precludes incumbents and their immediate supervisors from requesting review by the Director of HRD of a job reclassification decision. The rule reads: “Neither incumbents of positions, nor their immediate supervisor(s) are entitled to request a review of a job grading decision made by CBD.” (Para. 72)
  - The HRD Director denied Applicant’s 2008 request for administrative review of the job grading decision on this policy basis.
  - The Grievance Committee interpreted its jurisdiction to consider the integrity of the job audit process but not its outcome.
  - Respondent contends the Grievance Committee lacked jurisdiction to hear challenges to outcome or process and asserts the same bar should apply to the Administrative Tribunal; Respondent argues it is reasonable for the Fund to allow only departments to challenge job grading and reclassification decisions because departments are more directly impacted by broader equities. (Paras. 73–75)
  - Applicant contends that barring individual staff from seeking review leaves the staff member dependent on departmental action and potentially unjustly denied redress if the department fails to act; Applicant argues the department’s failure to request review of the 2007 audit does not relieve the Fund of the obligation to properly classify the incumbent. (Paras. 76)
- Legal question before the Tribunal:
  - Whether the rule barring a staff member from seeking review by the Director of HRD of a position reclassification decision supersedes the Tribunal’s Statute granting jurisdiction to challenge an “administrative act” adversely affecting a staff member; and whether the Fund may limit the Tribunal’s jurisdiction ratione materiæ and ratione personæ through an administrative regulation. (Para. 79)
- Tribunal’s preliminary position:
  - The Tribunal indicates it will answer these questions in the negative (i.e., the rule cannot supersede the Tribunal’s statutory jurisdiction). (Para. 79)

*Source: International Monetary Fund — GAO No. 11, Rev. 4, Section 5; Staff Bulletin No. 03/3 (Promotion Policy for Non-Managerial A-Level Positions); Human Resources Department intranet postings; Administrative Tribunal proceedings described in the cited materials.*

### 80.      The Fund’s managerial and policy discretion does not extend to setting limits on the

### j2011-1 - 80.      The Fund’s managerial and policy discretion does not extend to setting limits on the

### Jurisdiction of the Administrative Tribunal
- The Fund’s managerial and policy discretion does not permit setting limits on the jurisdiction of the Administrative Tribunal as granted by its Statute (para. 80).
- The Commentary on the Statute states that the Executive Board could refer a decision to the Board of Governors for ultimate approval and thereby foreclose review by the Tribunal, reflecting that the Board of Governors is "the organ responsible for establishing the tribunal and determining the scope of its jurisdiction." (Commentary on the Statute, p. 15; para. 80).
- Authority to amend the jurisdiction of the Tribunal is expressly reserved to the Fund’s Board of Governors (para. 80).

### Jurisdiction ratione personæ and ratione materiæ; definition of "administrative act"
- The Tribunal’s Statute affords recourse to “a member of the staff challenging the legality of an administrative act adversely affecting him . . . .” (Statute, Article II, Section 1.a.) (para. 81).
- If Ms. O’Connor, as a staff member, has been “adversely affected” by an “administrative act” of the Fund, the Tribunal has jurisdiction ratione materiæ and ratione personæ over her challenge (para. 81).
- “Administrative act” is defined as “any individual or regulatory decision taken in the administration of the staff of the Fund.” (Statute, Article II, Section 2.a.) (para. 82).
- The Commentary elaborates that the definition is intended to encompass “all decisions affecting the terms and conditions of employment at the Fund, whether related to a staff member's career, benefits, or other aspects of Fund appointment, including the staff regulations set forth in the N Rules,” and that there must be a “decision” identified in the application (Commentary on the Statute, p. 14; para. 82).
- The Tribunal found that contesting the reclassification of a position is a challenge to an “administrative act” within Article II (para. 82).

### "Adversely affected" threshold and standing
- The “adversely affecting” requirement ensures the applicant has an actual stake in the controversy (para. 83).
- The Tribunal has held the threshold set by “adversely affecting” is “not steep.” (Baker et al. v. IMF, IMFAT Judgment No. 2005-3, para. 20) (para. 84).
- Distinction is made between admissibility (standing) and merits (whether the decision was an abuse of discretion) (para. 84).
- Precedent (D’Aoust (No. 2)) confirms procedural breaches can constitute adverse effect; an applicant need not show he or she was the best-suited candidate to have standing to challenge procedural irregularities (paras. 87–88).

### Process versus outcome in reclassification challenges
- Applicant challenges both the process and the outcome of the reclassification (para. 85).
- The Grievance Committee noted a “fine line between an allegation of corruption in the process versus a challenge to the audit under its procedures” (Grievance Committee Order, April 24, 2009, p. 6) (para. 85).
- Violation of fair and reasonable procedures may provide a basis to rescind the contested “administrative act” or a separate ground for relief even if the decision is sustained (Commentary on the Statute, p. 19; examples cited in para. 88).
- Systems of classification and grading embody the principle that comparable work be compensated comparably; Tribunal has recognized equality of treatment in compensation (Mr. “R” (No. 2), IMFAT Judgment No. 2004-1, para. 51) (para. 89).

### Applicant’s asserted adverse effects and related Fund rules
- Applicant’s administrative review request alleges significant impacts on livelihood, remuneration, career, health, and pension prospects: “This matter has significant impact on my livelihood, past and present as a staff member and imminently as a pensioner, because it directly affects my level and potential level of remuneration.” (Applicant’s Request for Administrative Review, June 3, 2008, p. 1) (para. 91).
- GAO No. 11, Rev. 4, Section 5.08.3 provides that a staff member has the right to be promoted into the reclassified position if she meets the qualifications for promotion into the higher grade; otherwise the incumbent remains in the position on an “underfill” basis until meeting the requirements (para. 92).
- The Fund’s “Procedures for the Review of Position Classification Decisions” acknowledge that “[p]osition classification decisions made by CBD are sometimes challenged by departments on behalf of the staff member,” recognizing the incumbent’s interests are at stake and that department and incumbent interests may diverge (para. 93).

### Tribunal’s conclusion on jurisdiction and standing
- Respondent effectively acknowledges the incumbent has an “actual stake in the controversy” when a position is subject to reclassification (para. 94).
- The Tribunal concludes that permitting the Fund via a human resources directive to carve out exceptions to the Tribunal’s jurisdiction would be contrary to the intent and text of the Statute (para. 95).
- The Tribunal concludes it has jurisdiction to consider Applicant’s challenges to both the process and the outcome of the reclassification (para. 96).

### Role and value of the Grievance Committee and exhaustion of remedies
- The Tribunal recognizes the value of administrative review, including Grievance Committee review, for early resolution and for producing a detailed factual and legal record useful to the Tribunal (paras. 100–101).
- Precedent (Estate of Mr. “D”, IMFAT Judgment No. 2001-1) supports interpreting internal rules to permit access to the Grievance Committee where otherwise anomalous results would follow, and confirms the recourse procedures form “a comprehensive scheme” culminating in a recommendation to the Managing Director (paras. 98–99).
- Given the Grievance Committee’s approach in this case (recognition of the “fine line” noted above), the proceedings before it fulfilled the fundamental purposes of exhaustion of administrative review procedures; the Tribunal therefore found no cause to require further exhaustion in the circumstances (paras. 103, 100–103).
- The Tribunal observes the potential benefit of allowing incumbent staff to seek review by the Director of Human Resources of an unfavorable reclassification decision, including the possibility of an external consultant’s opinion that may be better positioned to assess grading and title (para. 104).
- The Tribunal invites the Fund to reconsider its internal law in light of the conclusion that an incumbent has standing to contest a reclassification before the Tribunal and notes that large-scale reclassification processes may require different rules (para. 105).

### Procedural posture and next question
- Having found the principal claim admissible, the Tribunal turns to the merits question: Did the Fund abuse its discretion in reclassifying Applicant’s position from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8? (para. 106).

*— Administrative Tribunal (IMFAT), paras. 80–106.*

### 107.     It is not disputed that the decision to reclassify a position is a decision taken in the

### j2011-1 - 107.     It is not disputed that the decision to reclassify a position is a decision taken in the

### Standard of review for managerial discretion (paragraphs 107, 109-110)
- The Tribunal articulated the applicable standard of review for discretionary managerial decisions as: “[W]ith respect to review of individual decisions involving the exercise of managerial discretion, the case law has emphasized that discretionary decisions cannot be overturned unless they are shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Commentary on the Statute, p. 19) (para. 107).
- The Executive Board and the Tribunal recognize a limited role for judicial substitution of judgment: “. . . judicial bodies have repeatedly affirmed their incapacity to substitute their own judgments for those of the authorities in which the discretion has been conferred.” (Commentary on the Statute, p. 20) (para. 109).
- The Tribunal accepted that “the degree of deference—or depth of scrutiny—may vary according to the nature of the decision under review, the grounds upon which it is contested, and the authority or expertise that has been vested in the original decision maker.” (Ms. “J”, para. 99) (para. 110).

### Deference in grading and classification of posts (paragraphs 108, 110-112)
- International administrative tribunals treat classification and grading as discretionary; review is limited to irregularity such as procedural defects or tainting by improper motive (D’Aoust, paras. 23, 26; Lyra Pinto v IBRD cited) (para. 108).
- Tribunals are reluctant to substitute their own technical assessments of job content or degree of responsibility; substitution occurs only where evaluation is tainted by irregularity (In re Dunand and Jacquemod; In re Garcia) (para. 108).
- The Fund’s GAO No. 11, Rev. 4, Section 4.01 assigns the Director of Human Resources responsibility for maintaining and modifying a system for grading positions to provide a consistent basis across departments and career streams (para. 110).
- The Tribunal emphasizes the principle of comparable treatment for staff performing comparable responsibilities (para. 111).

### Tribunal’s review approach to reclassification challenges (paragraphs 112-113)
- The Tribunal will:
  - Recognize HR expertise and seldom interfere with placement on a job ladder or precise grading (para. 112).
  - Initially assess whether the decision complied with the Fund’s internal law and fair and reasonable procedures (para. 113).
  - Then examine whether the decision was based on an error of fact or law (para. 113).
  - Finally consider whether discrimination or other improper motive affected the decision (para. 113).

### Fund’s job audit process as described (paragraphs 115-116, 118, 122)
- The Fund’s guidance “Job Audit Reviews” describes the typical audit steps (para. 116):
  1. The HR Officer reviews the job information and supporting documentation submitted by the department.
  2. The HR Officer asks questions, holds discussions with the incumbent, immediate supervisor, and others knowledgeable about the position (normally within the department but sometimes outside).
  3. The HR Officer assesses responsibilities against relevant job standards and comparable positions; a job audit report is drafted and discussed with the Compensation and Benefits Policy Division (CBD) before finalization.
  4. The job grading decision is communicated to the department through the Senior Personnel Manager; the incumbent is informed through the supervisory hierarchy.
- CBD testimony described benchmarks and documents used: job standards, comparators, PDQ, and APR (job-responsibility portion) (Tr. 284-285) (para. 117).
- The Tribunal found the Compensation and Benefits Policy Division carried out these fundamental elements (Tr. 106, 147-148, 160-161, 284-285) (para. 117).
- The guidance does not prescribe a two-person audit-team procedure or elaborate an internal CBD review process; it speaks of the “HR Officer” undertaking steps and of discussing drafts with CBD (para. 122).

### Applicant’s allegations about the job-audit process (paragraphs 114, 118-121, 126-131, 132-134)
- Applicant’s asserted defects in the 2007 audit:
  - CBD auditors did not meet Fund qualifications for conducting the audit and lacked required expertise (para. 118).
  - CBD was unduly influenced by or “took the direction of” Applicant’s department, focusing the assessment on the Archives and Records ladder (para. 118, 126).
  - CBD improperly relied on the earlier 2005 audit when conducting the 2007 audit (para. 118, 132).
  - Auditors failed to contact persons mentioned in the PDQ whom Applicant said she had interacted with (para. 118).
- Applicant relied on the intranet statement that “A Human Resources Officer from the Compensation and Benefits Policy Division” conducts audits and challenged whether the 2007 team composition complied with that (para. 119).
- Applicant alleged that in both 2005 and 2007 the less qualified team member took the lead, asserting the “lead” was a Senior Human Resources Assistant newly hired from another job stream and inexperienced (para. 121).
- The Senior Human Resources Assistant and other witnesses testified that the Human Resources Officer took the lead and that the Assistant served as peer reviewer (Tr. 387, 395) (para. 121).
- Auditors stated that “the audit takes the direction from the department’s request,” meaning they assessed the position in light of the reclassification request made by the department (Tr. 399) (para. 128-129).
- The lead auditor described the 2007 task as performing “a job audit on a position that is going from a 7 to an 8 under the records and archives management ladder” and that findings indicated a hybrid position that remained in the same ladder but with a promotion and a different job title (Tr. 185; Tr. 126) (para. 129).
- CBD Deputy Chief testified that if a job clearly belongs to another ladder CBD would reclassify accordingly, and that departments normally know the appropriate ladder (Tr. 348-349) (para. 130).
- Applicant claimed the 2007 audit was “tainted” by the 2005 audit; CBD’s lead auditor testified the 2005 audit was “inconclusive” and “would not have used it . . . in my job audit review” (Tr. 167); peer reviewer said the 2005 audit “did not play [a] role except that we were aware that it had occurred and that the audit was not brought to completion” (Tr. 393-394) (paras. 132-134).

### Tribunal findings and conclusions on process and independence (paragraphs 123-125)
- The Tribunal found the job audit process within CBD to be collaborative with layered review: two-person audit teams, review by a Senior Human Resources Officer, then by the CBD Deputy Chief, and subsequent dialogue with the Senior Personnel Manager of the requesting department that led to reconsideration (Tr. 116-117, 288-290; Tr. 148) (para. 123).
- The record showed senior CBD staff actively reviewed the two-person audit team’s conclusions and interacted with the requesting department (para. 124).
- The Tribunal concluded that audit staff met the qualifications for the task and that use of a two-person team was not prejudicial to Applicant (para. 125).
- The Tribunal held that CBD’s consideration of the department’s request and its dialogue with the department comported with the intranet policy and did not constitute improper influence; the final decision was taken by CBD, which accommodated departmental concerns (paras. 127, 131).

*Source: IMF Administrative Tribunal judgment excerpts (paragraphs 107–134).*

### 135.     The record indicates that at the conclusion of the 2005 audit, the Draft Job Audit Report

### j2011-1 - 135.

### 2005 job audit record and its relation to the 2007 audit
- The Draft Job Audit Report from the 2005 audit "was placed in Applicant’s file 'for future reference.'" (Email communication of April 11, 2005.)
- The 2007 Job Audit Report states: “Ms. O’Connor’s position was reviewed in connection with the May 2005 promotion cycle. However, the report was not concluded as [her department] withdrew the request.” (2007 Job Audit Report, p. 2.)
- Memorandum from CBD Deputy Chief to SPM, October 30, 2007: asserted that the 2005 audit concluded the job should be classified as Records Assistant at Grade A7 and that the current audit confirmed the 2005 recommendation with the only difference being the title, Records Management Assistant.
- Tribunal finding: those who performed the 2007 audit “reached their decision on different facts and independently of the 2005 job audit.” Reference to the 2005 audit by the CBD Deputy Chief was responsive to departmental dismay and not, by itself, evidence that the 2007 process was tainted.

### Applicant’s complaints about audit process and auditors’ testimony
- Applicant alleged deficiencies in the 2005 audit mirroring complaints about the 2007 audit: concerns about the job title of the lead auditor and alleged managerial influence.
- The Fund stated at least one member of the 2005 audit team held the title Human Resources Officer in CBD during that audit.
- Testimony excerpts from the 2005 lead auditor:
  - “I was one of the most experienced job auditors.” (Tr. 189; Tr. 193)
  - Acknowledged collaborative drafting: “. . . the other team member ‘. . . drafted the report. . . But we worked on it together.’” (Tr. 199)
  - “I was . . . technically leading. But we worked as a team . . . .” (Tr. 189)
  - Confirmed examination of the “job content” section of the APR. (Tr. 201, 222)
- Tribunal conclusion: the Applicant’s complaints about the 2005 audit process “are thus not substantiated on the record.”

### Consultation with persons named in the PDQ
- Applicant contended auditors failed to contact persons listed in her PDQ who could testify to her work, particularly for Fund-wide tasks. (Tr. 221-222; Applicant’s Request for Administrative Review, June 3, 2008, pp. 14-15.)
- Guidance quoted under “How are Audits Conducted?”: auditors may discuss the incumbent, immediate supervisor, and others knowledgeable about the position, who are normally within the department but can be outside it.
- Tribunal view:
  - CBD has discretion to determine which persons are relevant when assessing whether job responsibilities warrant reclassification (Staff Bulletin No. 03/3).
  - Where the broad outline of the job in the PDQ is accepted by auditors and both Applicant and supervisor were consulted, there is no legal basis to require contacting every person named in the PDQ.

### Whether the reclassification decision was based on an error of fact or law
- Applicant’s claim: although the decision provided a promotion, it failed to match her responsibilities with the appropriate job stream and grade; she contends her position should be in the Information Management job ladder at Grade A11.
- Applicant’s assertions about her work since 2002:
  - Innovated a system of information management for her department;
  - Developed standards and metadata for electronic management of departmental records in 2003;
  - Worked with Technology and General Services (TGS) and participated in Fund-wide advisory groups.
  - Described herself as the “. . . groundbreaker and innovator in the Fund in successfully applying the electronic management system to our specific documents environment using business analysis and institutional knowledge.”
- CBD and auditors’ rationale for reclassification to Senior Administrative Assistant (Office Services) at Grade A8:
  - Lead auditor: moving Applicant to Office Services was “a proposal to enable the promotion.” (Tr. 165)
  - Lead auditor assessment: Office Services has “other . . . technical responsibilities and less secretarial responsibilities. So the title was a better fit for [Applicant’s] duties and responsibilities.” (Tr. 175-176)
  - Applicant met Archives and Records ladder responsibilities only at the “base level,” which did not support promotion to Grade A8. (Tr. 172-175)
  - CBD Deputy Chief: Office Services classification “is broader and provides flexibility.” (Tr. 300-301) and “the best match we could find in order to support a promotion.” (Tr. 302)
  - Peer reviewer auditor regarded reclassification to Office Services as a “good fit.” (Tr. 396)
  - SPM: “Then, you know, the most important part of the request is achieved, namely, the request for a promotion.” (Tr. 246)
- Relevant rules and responsibilities:
  - Grading responsibility: Human Resources Department in consultation with departments (GAO No. 11, Rev. 4, Section 4.01).
  - CBD/CBD responsibility: Compensation and Benefits Policy Division of HRD performs job audits; Staff Bulletin No. 03/3 directs CBD to assess whether job responsibilities warrant reclassification.
- Comparator selection and Information Management ladder consideration:
  - Lead auditor compared Applicant’s job with Archives and Records job standards. (Tr. 125)
  - Comparators were selected from departments with positions similar to the department’s recommendation. (Tr. 128-129)
  - CBD Deputy Chief testified positions in the Information Management ladder require “manipulation of data in the document” and “Web site design,” which were missing from Applicant’s job content; CBD concluded Information Management was “not a proper match.” (Tr. 296-297, 333, 355; Tr. 327)
- Tribunal standard of review and outcome:
  - Tribunal defers to job auditors’ expertise unless material and significant errors of fact or law are established.
  - Tribunal finding: “The Tribunal cannot find there to have been a material error of fact or of law in the approach taken to the job audit decision.”
  - Conclusion: “there is no basis to conclude that the position reclassification decision failed to reflect properly either the level or nature of Applicant’s job responsibilities. The decision was a reasonable one, taken after the consideration of relevant evidence.”

### Allegations of bad faith and discriminatory motive
- Applicant alleged managerial bad faith and “pervasive racial discrimination in the department and the Fund,” contending these influenced the audit outcome.
- Applicant’s specific bad-faith allegation: managers sought reclassification to Grade A8 in the Archives and Records ladder knowing it was “pre-determined” by the 2005 audit and ladder structure that she could not be classified at Grade A8 there; alleged supervisor “was not being forthright—he was playing a game.”
- Tribunal review of managerial intent and actions:
  - GAO No. 11, Rev. 4 places responsibilities on Heads of Departments to define and document job content, maintain consistency, and monitor complements (Section 4.03).
  - SPM testimony described changed departmental circumstances and that with a newly constituted and larger department the 2007 request was “ripe” for re-initiation; he discussed alternate approaches with Applicant but judged a position audit most likely to achieve promotion.
  - Applicant noted in her PDQ the size and complexity of her department had increased since the earlier audit.
  - Applicant cited as troubling that managers did not invoke departmental procedures to seek review after she “expressed strong disappointment.”
  - Respondent maintained department managers acted in good faith and with genuine interest in finding a “positive outcome” consistent with Fund rules.
- Tribunal implication: the record suggests departmental action was in good faith and motivated by a genuine interest in achieving a promotion for Applicant rather than intentional undermining.

*Source: Tribunal findings in the IMF Grievance Committee record.*

### 165.     That Applicant’s departmental managers were supportive of her quest for career

### j2011-1 - 165.     That Applicant’s departmental managers were supportive of her quest for career

### Support from departmental managers and job-audit evidence
- Findings from Grievance Committee testimony of CBD job auditors support that Applicant’s departmental managers were supportive of her promotion:
  - The 2007 lead auditor testified that Applicant’s supervisor was “extraordinarily supportive of a promotion for Ms. O’Connor.” (Tr. 161)
  - The lead auditor stated his interview “contributed in a way that would have strengthened the case [for promotion].” (Tr. 162-163.)
  - The SPM was characterized as a “positive contributor to push for the promotion.” (Tr. 163.)
- Consistency of job descriptions:
  - Job auditors testified there was “nothing that they commented on that diminished the information that was provided [by Applicant].” (Tr. 178.)
  - The auditors found the information from Applicant’s managers did not diverge from Applicant’s own PDQ, the job content section of her APR, and auditors’ interviews of her.
- Interaction over the draft report:
  - The SPM advocated for a higher level position than initially suggested by CBD in its Draft Job Audit Report.
  - CBD Deputy Chief testified Applicant’s managers were “pushing for a promotion.” (Tr. 299-300.) Classification of Applicant’s position as Records Assistant at Grade A8 was “out of [the] question, from our point of view.” (Tr. 302-303.)
- Tribunal conclusion on managers’ motive:
  - The Tribunal found the record does not support an assertion of bad faith by Applicant’s managers and that they pursued reclassification in Applicant’s interest.

### Allegation of discriminatory animus and legal standard
- Applicant’s allegation:
  - Applicant alleges the position decision intended to deprive her of recognition and compensation “because of my race,” based principally on her 2006 and 2007 APRs and MARs and a theory that department management sought to change the department’s racial profile.
  - Applicant alleges management in 2006 “superimposed a racial bias model” and awarded 22 black staff members a significantly lower tier of MARs, creating disparate impact on black staff members.
- Legal prohibition and definition:
  - Discrimination on the basis of race is prohibited under the Fund’s internal law, expressed in Rule N-2 and the Discrimination Policy of July 3, 2003.
  - The Discrimination Policy defines prohibited discrimination to include differentiation made on the basis of personal characteristics such as race, unrelated to work-related capabilities, irrelevant to Fund policies, and having an adverse impact on employment, career opportunities, compensation, or other terms and conditions of employment. (Discrimination Policy, July 3, 2003, p. 4.)
- Causal link requirement:
  - To establish abuse of discretion on the ground of improper motive, Applicant must establish a “causal link” between the alleged improper motive and the contested decision (see Mr. “F”, paras. 73, 90).

### Applicant’s specific allegations regarding APRs/MARs and the job audit
- Two-pronged allegation about performance ratings:
  1. The allegedly discriminatory ratings directly influenced the outcome of the job audit.
  2. The supervisor’s allegedly inaccurate APR assessment meant he could not be relied upon to provide accurate information to the job auditors about the nature of Applicant’s responsibilities.
- Applicant’s contention:
  - The 2006 and 2007 APRs and MARs were “introduced into the audit process” and the MAR in her APR “conveyed to the auditors that my performance is at level 4,” thereby tainting the audit proceedings with unlawful racial bias.

### Role of APR/MAR in the job-audit process and Tribunal finding
- Fund’s response and Grievance Committee testimony:
  - The Fund and auditors confirmed that performance assessment sections of the APRs and merit ratings play no role in the job audit process.
  - Auditors review only the “job content” section of the APR, which is prepared by the staff member herself; they do not review supervisor-completed sections about performance. (Tr. 159-160; Tr. 284-285.)
- Tribunal conclusion:
  - Applicant did not rebut testimony that only the APR “job content” section prepared by Applicant was provided to auditors.
  - The Tribunal found Applicant failed to establish a nexus between alleged discriminatory allocation of APR/MAR ratings and CBD’s reclassification decision.
  - The supervisor’s information to the job audit team corroborated Applicant’s own description of her job responsibilities, refuting the claim that his views were unreliable.

### Retaliation claim: admissibility and exhaustion of remedies
- Applicant’s retaliation allegations:
  - Claims she was “side-stepped and treated badly,” “isolat[ed],” removed from previously assigned job responsibilities, received an unfavorable MAR for “last year,” and no salary increase for “this year.”
- Procedural obstacle:
  - Respondent contests admissibility under Article V, Section 1 of the Tribunal’s Statute requiring exhaustion of all available channels of administrative review before filing with the Tribunal.
- Tribunal precedent and application:
  - Tribunal has required exhaustion but noted exceptions when a later claim is (a) closely linked with the principal decision and (b) has been given some measure of review prior to the Tribunal Application (e.g., Ms. “EE”, para. 237).
  - Applicant’s retaliation claim arose after initiation of administrative review and was dismissed by the Grievance Committee in its Order of April 24, 2009 for failure to pursue prerequisite administrative review steps under GAO No. 31.
  - Alleged retaliatory acts occurred after completion of Grievance Committee proceedings and received no measure of review through the Fund’s dispute-resolution system.
- Tribunal conclusion:
  - The Tribunal does not reach the merits of Applicant’s retaliation claim because exhaustion requirements were not met.

### Additional claims and timeliness (direct challenges to APRs/MARs and 2005 job audit)
- Applicant’s further claims:
  - Direct challenge to 2006 and 2007 APRs and MARs as discriminatory and assertion that the 2005 job audit influenced the 2007 audit.
- Fund’s procedural response:
  - Fund contends direct challenges to the 2006 and 2007 APRs should be dismissed for failure to timely exhaust administrative-review channels as required by Article V of the Tribunal’s Statute.
- Applicant’s delay and the “discovery rule”:
  - Applicant concedes displeasure with 2006 and 2007 APRs/MARs when received but did not initiate administrative review until June 2008—more than a year after notification and beyond the six-month period prescribed by GAO No. 31.
  - Human Resources Director dismissed Applicant’s request for administrative review of the APRs for this reason.
- Tribunal’s timeliness standards:
  - The Tribunal emphasizes prompt exhaustion to allow the institution to rectify errors when memories and documents are fresh and to build a record for adjudication.
  - The Tribunal has held exceptional circumstances to excuse untimely initiation should not be readily found (see Estate of Mr. “D”, paras. 95, 104).

*Source: j2011-1, International Monetary Fund Administrative Tribunal judgment.*

### 193.     Ms. “AA”, who alleged that she had been subjected to a hostile work environment,

### j2011-1 - 193.     Ms. “AA”, who alleged that she had been subjected to a hostile work environment,

### Timeliness, discovery rule, and knowledge of elements
- Ms. “AA” argued her Application was admissible because she requested administrative review within six months of acquiring knowledge of all elements of her claim, asserting treatment formed a “pattern or practice” in violation of the Fund’s rules. (Ms. “AA”, para. 38.)
- The Tribunal rejected Ms. “AA”’s late challenge to non-conversion, finding that the facts did not support her assertion that she lacked knowledge of the elements of her claim until January 2005. (Ms. “AA”, para. 38.)
- The Tribunal emphasized that what matters is when an applicant was on notice of an administrative act of the Fund adversely affecting her; Ms. “AA” knew at the time of non-conversion that she had been adversely affected. (Ms. “AA”, para. 40.)
- In the instant case, Applicant (Ms. O’Connor) acknowledged that upon receipt of the APRs she felt unfairly treated and sought the Ombudsperson’s assistance; she knew she was being unfairly treated but testified she did not understand the reason until March 2008 when she learned of the possible effect of MARs on her career. (Grievance Committee Pre-Hearing Conference, 1-23-09 and 1-26-09, Tr. 90-92.)
- The Tribunal left open the possibility that a “discovery rule” might apply in another case, but concluded that the facts here do not constitute “exceptional circumstances” excusing failure to timely exhaust administrative review in respect of challenges to 2006 and 2007 APR and MAR ratings. (Ms. “AA”, para. 38; Tribunal discussion.)

### “Recurring use” theory and job audits/APRs/MARs
- Applicant asserted that the 2006 and 2007 APRs “discriminate anew each time they are used,” arguing APRs and job audits “trail a staff member” and constitute recurring acts that cannot be time-barred; Applicant also challenged the 2005 job audit and its continued use. (Applicant’s assertions.)
- Applicant cited ILOAT jurisprudence: In re Mrs. T.K., ILOAT Judgment No. 2951 (2010) and In re Meyler, ILOAT Judgment No. 978 (1989), to support that decisions with recurring effects cannot be time-barred.
- Tribunal findings:
  - Complaints about the 2005 job audit process are not substantiated on the record and therefore cannot found a claim of improper “recurring use.” 
  - The Tribunal did not need to decide the validity of a “recurring use” argument for 2006 and 2007 APRs/MARs because it was clear those APRs and MARs were not used in the job reclassification process.
  - Consequently, Applicant has not established entitlement to challenge the APRs and MARs at this stage without having timely pursued administrative review.

### Allegations of continuing discrimination, hostile work environment, and career mismanagement
- Applicant’s asserted continuing-harm theory:
  - “As a part of the terms and conditions of my appointment, I am entitled to be properly classified and compensated. A breach of my right in this regard is continuing. Even though I may not contest the 2005 job audit at this time, I have had a right to be properly classified from the time I entered the Fund . . . [T]he harm has been a continuing harm and continues to exist.” (Emphasis supplied.)
- Applicant’s generalized discrimination claim: “I have been discriminated against for a long time and this has prevented me from being properly classified at the right grade level that I deserve based on the duties I have carried out over many years.”
- Applicant’s career mismanagement claim: alleges lack of proper classification and fair compensation since 2002 despite “significant changes in the functions attached to my position,” and contends career advancement was mismanaged by the Fund’s failure to ensure proper classification and compensation.
- Applicant alleges that the 2005 and 2007 job audits and the 2006 and 2007 APRs and MARs, together with other factors, indicate a hostile work environment.
- Applicant’s relief requests include an additional increase of 3 percent per year over 20 years, suggesting redress sought for long-standing career harm.
- Respondent objected to admissibility of allegations tied to 2006 and 2007 APRs and to recent alleged retaliatory treatment as evidence of a “pattern” relevant to the principal reclassification claim.
- Tribunal’s legal framework and precedent:
  - The Fund’s Discrimination Policy recognizes discrimination may be a single adverse decision or a pattern/cumulative effect of words, behaviors, action, or inaction that deprives an individual of fair and impartial treatment. (Discrimination Policy, July 3, 2003, p. 4.) See Mr. “F”, paras. 84-101.
  - In Mr. “F” and Mr. “O”, the Tribunal considered when earlier incidents may be admissible if a culminating act is not time-barred; where a culminating event is not time-barred, related earlier incidents may be considered.
  - The Tribunal was willing to assume admissibility of a claim of continuing discrimination without formally deciding the question here.
- Tribunal findings on the merits:
  - The Tribunal rejected Applicant’s claim that the 2007 job audit process was tainted by discrimination; Applicant did not point to events demonstrating discrimination comparable to Mr. “F”.
  - Unlike Mr. “F”, the Fund here challenged admissibility and the Applicant had not fully pursued administrative review channels for the “continuing” discrimination complaint.
  - The record does not establish a pattern of discrimination or the creation of a hostile work environment; Applicant cannot succeed on those claims.
  - On “career mismanagement,” prior Tribunal decisions have generally rejected such claims on the merits. Here, because the Tribunal concluded the 2007 job reclassification decision must fail as to the Applicant, the basis for career mismanagement also falls away.
  - The Tribunal dismissed the additional claims in their entirety.

### Tribunal conclusions and decision
- The Tribunal observed that perceptions of racial discrimination are harmful and that Applicant genuinely feels discriminated against, but she has not established discrimination on this record.
- The Tribunal noted that Applicant did not pursue remedies for alleged discrimination until challenging the 2007 position reclassification decision in these proceedings; therefore the Fund cannot be held accountable for failing to respond earlier.
- The Tribunal emphasized staff share responsibility to seek remedies; when staff seek remedies, the Fund’s obligation to provide an effective response is clear.
- Final determinations:
  - Applicant has the right to challenge the job reclassification decision in the Tribunal but did not meet the burden of showing the Fund abused its discretion in taking that decision.
  - The decision to reclassify Applicant’s position from Senior Administrative Assistant (Secretary, Division) at Grade A7 to Senior Administrative Assistant (Office Services) at Grade A8:
    - was not affected by procedural error;
    - was not based on an error of fact or law;
    - was not motivated by discriminatory animus or other improper motive;
    - was a reasonable decision taken after consideration of relevant evidence by persons trained to apply job grading criteria.
  - There is no ground for the Tribunal to substitute its judgment for the decisionmakers’ determination. See D’Aoust, para. 26.
  - Applicant’s additional claims are dismissed in their entirety.
- Decision (unanimous): The Application of Ms. O’Connor is denied.
- Decision signatories and formalities:
  - Catherine M. O’Regan, President
  - Nisuke Ando, Judge
  - Michel Gentot, Judge
  - Celia Goldman, Registrar
  - Washington, D.C.
  - March 16, 2011

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_Source: https://www.imf.org/-/media/files/imfat/j2011-1.pdf_