## JUDGMENT No. 2015-3, Ms. “GG” (No. 2) v. International Monetary Fund ## Source details **Canonical URL:** [JUDGMENT No. 2015-3, Ms. “GG” (No. 2) v. International Monetary Fund](https://www.imf.org/-/media/files/imfat/j2015-3.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2015-3.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2015-3.pdf.json) --- ### Procedural history and parties - Administrative Tribunal met on October 28–29 and December 8, 2014, and November 12–13, 2015; composition: Judge Catherine M. O’Regan, President, and Judges Jan Paulsson and Edith Brown Weiss. - Applicant represented herself; Respondent represented by Ms. Jennifer Lester and Ms. Juliet Johnson, IMF Legal Department. - Applicant filed the Application with the Administrative Tribunal on February 10, 2014; transmitted to Respondent on February 12, 2014. - Prior related Tribunal judgment: IMFAT Judgment No. 2013-3 (Ms. “GG” I) dismissed Applicant’s first Application for failure to exhaust channels of administrative review. ### Applicant’s central allegations - Pattern of conduct by management (in particular the Department Director) consisting of: - retaliation (for reporting misconduct of another staff member), - harassment (including alleged sexual harassment), - and gender discrimination. - Alleged consequences: hostile work environment, failure to credit professional accomplishments, impeded career advancement. - Specific challenges included: - failure to address reported unfair treatment; - conduct at the February 2009 RC meeting impeding inclusion on the B List; - non-selection for B-level vacancies in 2009, 2010, and 2011; - FY2009 and FY2010 Annual Performance Reviews (APRs) allegedly affected by retaliation and discrimination; - July 2011 promotion-policy revisions and denial of the “transitional measure” to Applicant; - alleged failures of due process in administrative review and Grievance Committee processes. ### Remedies sought by Applicant - Revision of FY2009 and FY2010 APR ratings. - Retroactive promotions and salary increases (B1 effective July 2009 and B2 effective November 2010 asserted in submissions). - Monetary compensation for retaliation, harassment, discrimination, and procedural failures. - Compensation for imputed cost of time spent representing herself. ### Respondent’s principal defenses and procedural objections - Contended only the FY2010 APR challenge was properly before the Tribunal; other claims inadmissible on multiple grounds (timeliness, lack of standing, non‑justiciability, failure to exhaust administrative review). - Asserted FY2010 APR was proper managerial discretion supported by evidence and not motivated by discrimination, retaliation, or harassment. - Opposed broad document production requests on relevance, privacy, burden, and timeliness grounds. ### Procedural filings and evidentiary process - Respondent filed Answer on March 31, 2014 (supplemented April 7, 2014); Applicant filed Reply May 12, 2014 (supplemented May 21, 2014); Fund’s Rejoinder filed June 26, 2014. - Tribunal considered Rule XVII document production requests, reviewed certain documents in camera, and ordered selective production/redactions (notably: Selection Memorandum and July 2011 SPM Memorandum requesting “grandfathering”). - Tribunal denied Request No. 1 for unredacted documents and Request No. 5 for identification of a pseudonymous individual; ordered in camera review of APRs (Request No. 4) and ultimately excluded them from the record as not material. - Tribunal denied oral proceedings as not “useful” after weighing sufficiency of the written record and precedents. --- ### Tribunal findings — admissibility and scope - Pattern/pattern‑based claim: - Tribunal accepted that acts not independently challenged as “administrative acts” may be invoked as part of a pattern of prohibited conduct; a timely challenge to a later act in the pattern can render the pattern claim admissible (citing Mr. “F” and other jurisprudence). - Applicant timely challenged her FY2010 APR; Tribunal held Applicant raised an admissible claim that she was subject to a pattern of unfair treatment constituting a hostile work environment. - Admissibility rulings on specific career decisions: - 2009 Selection Panel recommendation: not implemented (requisition cancelled); Tribunal concluded the 2009 recommendation did not constitute an “administrative act adversely affecting” Applicant for purposes of Article II, Section 1(a), and is not independently challengeable. - 2010 and 2011 non‑selection decisions: Applicant did not apply for those vacancies; Tribunal held Applicant lacks standing to challenge those decisions. - FY2009 APR: Applicant did not initiate timely administrative review; Tribunal found no “exceptional circumstances” excusing the delay and dismissed challenge to FY2009 APR as inadmissible. - FY2010 APR: challenge admissible and considered on the merits. --- ### Tribunal findings — hostile work environment and related conduct - Key factual findings: - Three RC members contemporaneously reported Applicant was “very competitive” for the B List but the Department Director attended the February 2009 RC meeting and “basically gave us a number of reasons why she should NOT be put on the list.” Tribunal found these RC members’ documentary accounts reliable and concluded the Department Director’s conduct at the February 2009 RC meeting was a significant factor impeding Applicant’s advancement to the B List. - The Selection Memorandum for the 2009 vacancy showed the panel ranked Applicant first on interviews but recommended another candidate after considering non-interview factors (including regional language/contact advantages); no formal comparative grids were found. - Applicant reported that in July 2009 the Department Director responded to her citation of a leading‑journal publication by saying “[the publication] doesn’t mean beans” and advised she could improve ratings by “use[ing] charm, humor and personal appeal to him.” The Department Director did not deny advising Applicant to use “more charm than aggression.” - Legal characterization: - Tribunal applied Fund Harassment Policy and Discrimination Policy definitions and jurisprudence on patterns and hostile work environment. - Tribunal concluded Applicant “reasonably perceived” the Department Director’s July 2009 remarks as gendered and demeaning; while the remarks did not meet the Harassment Policy definition of “sexual harassment” in isolation, they contributed, cumulatively with other conduct, to a pattern of unfair treatment constituting a hostile work environment. - Tribunal found the Fund failed effectively to respond to the hostile work environment; responsibility for the pattern was primarily that of the Department Director and the Fund’s failure to act adequately followed. --- ### Tribunal findings — APR, promotion policy, and procedures - FY2010 APR (rating period May 1, 2009–April 30, 2010): - Applicant rated “Effective”; Tribunal reviewed process (Division Chief proposal followed by Department roundtable with numerical quotas). - Evidence supported that the Division Chief principally authored the FY2010 APR and recommended “Effective”; Division Chief and SPM testimony provided reasonable and observable bases for the rating (comparative context, managerial criteria, rationing of higher ratings). - Tribunal concluded Applicant did not establish that the FY2010 APR was arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or in violation of fair procedures; the FY2010 APR challenge was denied on the merits. - B1→B2 promotion policy revision (Memorandum of July 1, 2011): - Tribunal sustained the regulatory decision increasing minimum time‑in‑grade (TIG) for economists from 12 months to 18 months for eligibility to be considered for promotion from Grade B1 to Grade B2, finding the change rationally related to objectives (ensuring at least one full APR cycle and strengthening managerial readiness) and the result of deliberation and consultation. - Transitional measure (Memorandum statement: “As a transitional measure for the upcoming November 2011 round, the TIG for economist promotions to B2 will be maintained at 12 months”): - Tribunal found the Fund’s implementation of the transitional measure to be arbitrary as applied to Applicant. - Tribunal concluded that excluding staff (including Applicant) promoted to B1 between May 1 and July 1, 2011 from the transitional protection lacked a rational nexus to the stated purpose of protecting legitimate expectations and therefore constituted an abuse of discretion in implementation. - Ethics investigations and weight of Ethics Office findings: - Tribunal struck redacted Ethics Reports from the record but took notice that Ethics investigations had been undertaken and completed. - Tribunal observed limitations on the weight it may give to Ethics Office findings because of confidentiality, differing fact‑finding methods, and non‑adversarial process; Ethics findings are not dispositive for Tribunal proceedings absent a compelling reason. - Procedural challenges to administrative review and Grievance Committee: - Tribunal reviewed record, in camera materials, and parties’ procedural arguments. - Tribunal found no ground to conclude administrative review and Grievance Committee processes materially impaired the evidentiary record; Applicant’s challenges to elements of those processes were denied. --- ### Remedies, compensation, and orders - Tribunal remedies ordered (unanimous decision, Administrative Tribunal of the International Monetary Fund; Washington, D.C.; December 29, 2015): 1. Found Applicant was subject to a pattern of unfair treatment constituting a hostile work environment and that the Fund failed effectively to respond. To remedy intangible injury, the Fund shall pay Applicant compensation in the sum of $60,000. 2. Sustained the July 1, 2011 regulatory promotion decision increasing TIG from 12 months to 18 months for Grade B1 economists’ eligibility to B2. 3. Rescinded the individual decision denying Applicant the benefit of the transitional measure implementing the July 1, 2011 policy and awarded compensation of $10,000 to correct effects of the rescinded individual decision (delay in eligibility from November 1, 2012 to November 1, 2013). 4. Dismissed Applicant’s challenges to non‑selection decisions of 2009, 2010, and 2011 and to her FY2009 APR as inadmissible. 5. Denied Applicant’s challenge to her FY2010 APR on the merits. 6. Denied Applicant’s challenges to elements of the administrative review and Grievance Committee processes. 7. Denied Applicant’s request for compensation for the imputed cost of her time representing herself. - Additional remedial points: - Tribunal declined to order monetary awards to be expressed net‑of‑tax; left tax‑adjustment issues to the Fund. - Tribunal declined to award compensation for imputed self‑representation time in absence of documentary quantification and precedent applicable to non‑attorney self‑representation. --- ### Legal and policy implications emphasized by the Tribunal - Pattern claims: a timely challenge to a culminating administrative act permits consideration of an accrual of prior acts and inaction as constituting a pattern of prohibited conduct under the Fund’s Harassment and Discrimination policies. - Managers’ duties: senior officials bear explicit responsibility under GAO No. 33 and GAO No. 31 to prevent and address harassment, discrimination, and retaliation, and the Fund may be held liable for failures to respond effectively. - Ethics investigations: initiation of an Ethics Office inquiry does not automatically absolve the Fund of responsibility before the Tribunal for adverse employment effects resulting from alleged misconduct. - Exhaustion of remedies: requirements are important and “exceptional circumstances” to excuse delay are not easily found; fear of reprisal can, in some circumstances, be relevant but must be demonstrated with explanation of timing and steps taken when risk abated. *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2015-3, Ms. “GG” (No. 2) v. International Monetary Fund.* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Procedural history and hearing - The Administrative Tribunal of the International Monetary Fund met on October 28 and 29 and December 8, 2014,1 and November 12 and 13, 2015, composed for this case, pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan, President, and Judges Jan Paulsson and Edith Brown Weiss. - Applicant represented herself in the proceedings. - Respondent was represented by Ms. Jennifer Lester, Assistant General Counsel, and Ms. Juliet Johnson, Counsel, IMF Legal Department. - The Applicant filed the instant Application with the Administrative Tribunal on February 10, 2014; it was transmitted to Respondent on February 12, 2014. - On February 18, 2014, pursuant to Rule IV, para. (f), the Registrar circulated within the Fund a notice summarizing the issues raised in the Application. - This is the second Application brought by Ms. “GG”; the first was dismissed for failure to exhaust channels of administrative review. See Ms. “GG”, Applicant v. International Monetary Fund, Respondent (Admissibility of the Application), IMFAT Judgment No. 2013-3 (October 8, 2013) (Ms. “GG” I). ### Applicant’s central allegations and claims - Applicant contends that management of her former Department, in particular the Department Director, engaged in a pattern of: - retaliation (for reporting misconduct of another staff member), - harassment (including sexual harassment), - and gender discrimination. - Applicant alleges that the pattern constituted a hostile work environment and resulted in failure to credit fully her professional accomplishments, thereby impeding her career advancement. - Specific challenges brought by Applicant include: - (i) the Fund’s alleged failure to address the pattern of unfair treatment that she reported to Fund officials; - (ii) the Department Director’s alleged purposive actions to undermine her candidacy before the Review Committee (RC) in 2009, when the RC decided not to advance her to the B List (also known as the RC List), thereby delaying her eligibility for promotion to B-level positions; - (iii) her non-selection for a particular B-level position in her Department for which she applied in 2009 but which was not filled until after it was re-advertised in 2010; - (iv) her non-selection for a different B-level position in the same Department in 2011, following her lateral transfer to a different Department; - (v) her Annual Performance Reviews (APRs) for FY2009 and FY2010, which she contends were impermissibly affected by retaliation, harassment, and discrimination, based on factual errors and taken in disregard of Fund rules; - (vi) 2011 revisions to the Fund’s promotion policy, which she contends are arbitrary and unfairly discriminate against economist staff, and the Fund’s failure to afford her the benefit of the “transitional measure” included in the revised policy; - (vii) elements of the administrative review and Grievance Committee processes, which she alleges constitute failures of due process and materially impair the evidentiary record. ### Remedies sought by Applicant - Revision of her FY2009 and FY2010 APR ratings. - Retroactive promotions and salary increases. - Monetary compensation for retaliation, harassment, discrimination, and procedural failures. - Compensation for the imputed cost of her time spent representing herself in the Tribunal and through the channels of review. ### Respondent’s principal defenses and procedural objections - Respondent maintains that the only issue properly before the Tribunal is Applicant’s challenge to her FY2010 APR. - The Fund asserts that the FY2010 APR decision was taken in the proper exercise of managerial discretion and was reasonably supported by evidence. - The Fund denies that the FY2010 APR decision was improperly motivated by discrimination, retaliation or harassment by the Department Director or that he created a hostile work environment. - The Fund asserts the FY2010 APR reflected the considered judgment of Applicant’s direct managers, independent of any influence by the Department Director. - Respondent maintains that other claims are inadmissible on multiple grounds: - (i) the 2009 complaint that the Fund failed to address harassment, retaliation and discrimination is not justiciable, has not been exhausted through administrative review, and is without merit; - (ii) the complaint that the Department Director’s conduct before the RC wrongfully undermined her candidacy for the B List is not justiciable as an “administrative act” of the Fund; - (iii) the 2009 vacancy selection process did not constitute an “administrative act” adversely affecting Applicant; - (iv) Applicant lacks standing to challenge the 2010 and 2011 non-selection decisions because she did not apply for the vacancies; - (v) Applicant failed to raise a timely challenge to her FY2009 APR; - (vi) Applicant did not bring a timely challenge to the 2011 revision to the promotion policy “directly” with the Tribunal within three months of its announcement or effective date, and her challenge is not linked to an individual decision applying the revised policy in her case; and - (vii) allegations of failures of due process in administrative review and Grievance Committee processes are not within the Tribunal’s jurisdiction. ### Prior administrative review and Grievance Committee history - The initial Application by Ms. “GG” was dismissed for failure to exhaust channels of administrative review because it raised claims “closely allied” with another claim still pending before the Fund’s Grievance Committee (Ms. “GG” I). - Following the conclusion of the Grievance Committee’s proceedings, its recommendation was submitted to Fund Management and Management accepted the Grievance Committee’s recommendation.2 - After conclusion of the internal channels, Applicant filed the present Application on February 10, 2014. *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2015-3, Ms. “GG” (No. 2) v. International Monetary Fund* ### 6. On March 31, 2014, Respondent filed its Answer to the Application, which was ### j2015-3 - 6. On March 31, 2014, Respondent filed its Answer to the Application, which was ### Procedural history and filings - Respondent filed its Answer on March 31, 2014, supplemented on April 7, 2014, pursuant to Rule VIII, para. 4. - Applicant submitted her Reply on May 12, 2014, supplemented on May 21, 2014, pursuant to Rule IX, para. 4. - The Fund’s Rejoinder was filed on June 26, 2014. - Tribunal notifications and subsequent party filings: - Tribunal notified parties of decisions on production of documents and oral proceedings on September 11, 2014. - The Fund submitted documents and information on September 26, 2014. - Applicant filed Comments on the Fund’s submission on October 20, 2014. - Tribunal requested additional documents and briefing from the Fund under Rule XI and Rule XVII, para. 3, following its October 28–29, 2014 session. - The Fund’s Responses were received on November 13 and December 1, 2014. - Applicant’s Comments on these submissions were filed on December 2, 2014 and January 16, 2015, and transmitted to the Fund for information. ### Applicant’s requests for production of documents and information (Rule XVII) - Applicant requested the following (as pleaded under Rule XVII): 1. Unredacted documents (“emails, memos, etc.”) relating to the selection of another candidate for the B-level position in her Department for which Applicant applied in 2009, Applicant’s non-selection for the position, and the alleged withdrawal of the original vacancy announcement in or about July 2009. 2. Memorandum from Applicant’s Department to the RC in or about July 2009 (relating to the selection for the 2009 vacancy), as referenced in the second paragraph of the November 24, 2009 email from three RC members to the Human Resources Department (HRD) Director. 3. Memorandum of July 2011 from two Senior Personnel Managers (SPMs) to HRD, requesting that Applicant be “grandfathered” under the previous promotion policy. 4. FY2010 APRs of three senior economists in Applicant’s Division. 5. The identity of an individual referred to by pseudonym in one of the Tribunal’s earlier Judgments. 6. Documents to determine whether Applicant’s Department had received permission from HRD to keep open the contested B-level position for a period of more than six months, from July 2009 until April 2010. - In her Reply, Applicant additionally requested “unredacted copies of the documents to the [Grievance] Committee on August 17, 2012 related to the RC list meetings and the . . . division chief selection,” which the Tribunal understood to include the handwritten notes of the RC meeting reviewed in camera by the Grievance Committee. ### Respondent’s objections and core issues - The Fund opposed all requests on the grounds that: - There was already a comprehensive evidentiary record before the Tribunal and the requests were irrelevant to Applicant’s “core APR claim.” - Compliance would unduly infringe on the privacy of individuals (Rule XVII, para. 2). - For Requests Nos. 1, 2 and 6, the Fund argued Applicant’s challenge to the 2009 non-selection decision is inadmissible for failure to initiate timely exhaustion of administrative review. - The Fund asserted that disclosure of deliberative-selection documents would impair managers’ ability to express views on competing candidates. - Regarding Request No. 6, the Fund asserted the vacancy was closed and re-advertised under a new requisition number and that different vacancy announcements, candidates, and selection panels were involved in 2009 and 2010. ### Tribunal’s approach to evidentiary requests - The Tribunal started from Rule XVII, para. 2, which allows rejection of a request if the documents are irrelevant, unduly burdensome to produce, or would infringe privacy; the Tribunal may examine requested documents in camera for purposes of deciding on the request. - The Tribunal’s practice and considerations: - If requested evidence is not shown to be “irrelevant to the issues of the case,” the Tribunal ordinarily will not reject the request unless production would be unduly burdensome or would infringe privacy. - The Tribunal weighs probative value of requested information against production burden and privacy interests of other staff members. - The Tribunal may review documents in camera solely for deciding whether to grant the request; if it grants the request, documents ordinarily are transmitted to the applicant; if it denies the request after in camera review, those documents will not be relied upon in the Judgment. - The Tribunal conducts de novo review and is not bound by the Grievance Committee’s in camera findings; the fact that the Grievance Committee reviewed documents and found no evidence of bias is not dispositive for the Tribunal. - Precedent cited by the Tribunal in explaining approach (examples within Tribunal jurisprudence): - Requests may be denied as unduly burdensome where probative value is limited (Ms. N. Sachdev, IMFAT Judgment No. 2012-1). - Privacy concerns can justify redactions or partial production (Mr. M. D’Aoust (No. 2), IMFAT Judgment No. 2007-3). - In camera review may lead to production where documents are relevant to issues of bias or administrative decisions (Mr. R. Niebuhr, IMFAT Judgment No. 2013-1). ### Relevance of 2009 selection process to FY2010 APR claim - The Grievance Committee had allowed limited evidence relating to 2009 events on the ground that they were relevant to Applicant’s contention that the FY2010 APR (covering the period May 1, 2009–April 30, 2010) was improperly motivated by retaliation, harassment, and discrimination on the part of the Department Director. - The Tribunal recognized the significance of Applicant’s contention that the 2009 selection process (a) formed part of a pattern of unfair conduct directed at her and (b) provided evidence that other administrative acts, including the FY2010 APR decision, were tainted by retaliation, harassment, discrimination and a hostile work environment. - Record limitations: - Applicant did not receive formal feedback on the 2009 vacancy selection process. - The record contains competing testimony of the Department Director and an email of an RC member on the Selection Panel. - The 2009 Selection Panel recommended another candidate, but that recommendation was not implemented because only staff already on the B List could be appointed; neither Applicant nor the selected candidate was on the B List in 2009. - The vacancy was re-advertised in 2010; Applicant did not apply in 2010, allegedly because the Department Director told her the 2009 selectee was expected to be appointed and was placed in the post on an “in charge” basis. ### Tribunal decisions on Applicant’s requests concerning the 2009 vacancy (September 11, 2014) - The Tribunal granted Applicant’s Request No. 2 for the Selection Memorandum, noting Applicant had not been given any formal explanation for her non-selection in 2009. - To protect the privacy of other individuals, the Fund was asked to redact the Selection Memorandum to reveal identities only of Applicant and the selectee. - The Fund was requested to append any record of an opinion dissenting from the selection decision. - The Tribunal granted Applicant’s Request No. 6 for documents to determine whether the Department obtained permission from HRD to keep the position open for more than six months, from July 2009 to April 2010. - Respondent submitted responsive documents on September 26, 2014; Applicant filed Comments on these documents on October 20, 2014. *Source: IMF Administrative Tribunal materials (procedural record and Tribunal decisions as set out in the supplied text).* ### 28. Also on September 11, 2014, the Tribunal denied Applicant’s Request No. 1 for ### j2015-3 - 28. Also on September 11, 2014, the Tribunal denied Applicant’s Request No. 1 for ### Requests for production of documents: Requests No. 1, 3, 4, and 5 - Request No. 1 - Decision: Denied on September 11, 2014. - Scope: Applicant sought additional documentation relating to the vacancy selection process, including “unredacted copies of the documents to the Committee on August 17, 2012 related to the RC list meetings and the . . . division chief selection,” understood to include handwritten notes of the 2009 RC meeting that the Grievance Committee had reviewed in camera. - Rationale: The Tribunal concluded the record was sufficient and Applicant had not proffered any reason why “unredacted” documents should be produced to her. - Record elements already included: email of November 24, 2009 from three RC members to the HRD Director; Grievance Committee testimony of the Department Director; feedback form provided by the RC to Applicant following its decision not to advance her to the B List in 2009. - Request No. 3 - Subject: Joint Memorandum from the SPMs of the two Departments in which Applicant served in 2010 and 2011 requesting that an exception be made to allow Applicant to receive the benefit of the pre-existing B1→B2 promotion policy rather than the revised policy announced July 1, 2011. - Policy change specifics: The revised policy inter alia extended the minimum time-in-grade (TIG) from 12 months to 18 months for economists to become eligible for promotion from B1 to B2; promotions are made once annually, on November 1st. The revised policy additionally provided: “As a transitional measure for the upcoming November 2011 round, the TIG for economist promotions to B2 will be maintained at 12 months.” (Memorandum from Deputy Managing Director to Fund Staff, “Management Approval of Promotion Policy Reform,” July 1, 2011.) - Applicant facts: Promoted to B1 during the period between May 1 and July 1, 2011; pursuant to the new policy, did not become eligible for promotion to B2 until November 1, 2013; Applicant challenges the policy and its application to her. - Respondent position: Opposed production on timeliness grounds (Applicant had not raised a timely challenge and could not protest failure to make an exception in her case). - Tribunal jurisdiction: Concluded it does have jurisdiction to consider Applicant’s challenge to the promotion policy and its application to her. - Tribunal action on September 11, 2014: Granted Applicant’s Request that the Fund produce the July 2011 Memorandum requesting she be “grandfathered” under the prior B1/B2 promotion policy. - Rationale for production: Document not “irrelevant to the issues of the case” (Rule XVII, para. 2) given interlocking nature of Applicant’s claims, and compliance did not appear “unduly burdensome” or to “infringe on the privacy of individuals” (Rule XVII, para. 2); Respondent had not argued undue burden or privacy infringement. - Follow-up: Tribunal requested explanation of how the “transitional measure” was implemented; Respondent submitted documents and information on September 26, 2014; Applicant filed Comments on October 20, 2014. Additional briefing on merits requested after Tribunal session of October 28–29, 2014; submissions filed December 1, 2014 and January 16, 2015. - Request No. 4 - Subject: FY2010 APRs of three senior economists in Applicant’s Division. - Relevance asserted by Applicant: Possession of copies due to managerial responsibilities; sought to use colleagues’ APRs to challenge credibility of Division Chief’s testimony and to show inconsistent application of performance standards and favoritism affecting Applicant’s FY2010 APR and recognition for a research paper. - Respondent position: Opposed broad review of APRs for A15 senior economists; framed Tribunal’s task as assessing whether evidence reasonably supports Applicant’s “Effective” rating and whether evaluation was free from improper motive. - Tribunal consideration: Determined Request No. 4 relates to an admissible claim (challenge to FY2010 APR); weighed probative value against privacy interests of other staff members; invoked Rule XVII, para. 2 authority to examine documents in camera. - Procedure and result: On September 11, 2014, ordered Fund to deliver APRs with names of three senior economists redacted for in camera inspection; Respondent provided APRs on September 26, 2014. After in camera review, Tribunal concluded the APRs do not provide additional material information, denied Applicant’s request to make them part of the record, and will not take them into account in deciding the Application. - Additional note: Tribunal distinguished evidentiary admissibility from propriety of Applicant’s prior access to confidential personnel documents; ruled APRs inadmissible as not material to the record. - Request No. 5 - Subject: Identity of an individual referred to by pseudonym in an earlier Tribunal Judgment. - Applicant’s claim: Believed individual may figure in present case and information in earlier Judgment is relevant. - Respondent position: Opposed based on even-handed application of Tribunal’s anonymity policy and non-relevance of extrinsic information. - Tribunal practice and decision: Tribunal generally does not identify individuals by name in Judgments other than parties; Rule XXII governs anonymity requests; on September 11, 2014, the Tribunal denied Request No. 5, finding no ground to deviate from policy protecting identities of non-parties and that due process requires deciding the Application solely on the record developed in the case. ### Evidence, probative assessments, and in camera review - Comparative nature of FY2010 APR decision: - Tribunal noted contested APR decision was a comparative exercise based on both “absolute” and “relative” measures of performance. - Division Chief’s Grievance Committee testimony: Department has guidelines and quantitative indicators; at the end of the day, it is a relative ranking; Division Chief makes a proposal to the front office followed by a Department-wide roundtable where ratings are decided with numerical quotas (9/16/11 Tr. 413-415). - In camera inspection authority: Tribunal invoked Rule XVII, para. 2 to examine documents in camera when weighing probative value against privacy interests. ### Oral proceedings request and witnesses - Legal framework: - Article XII of the Tribunal’s Statute: Tribunal shall “. . . decide in each case whether oral proceedings are warranted.” - Rule XIII, para. 1: “Oral proceedings shall be held if, on its own initiative or at the request of a party and following an opportunity for the opposing party to present its views pursuant to Rules VII-X, the Tribunal deems such proceedings useful.” - Tribunal practice: Considers sufficiency of the written record in determining usefulness of oral proceedings. - Record available to Tribunal: - Transcript of Grievance Committee hearings including testimony by Applicant; former Department Director; former Division Chief; former Senior Personnel Manager (SPM); another senior Department official; a former colleague; and a former supervisor in another Department. - Tribunal authorized to weigh Grievance Committee record as evidence (D’Aoust, para. 17). - Applicant’s request for oral testimony: - Sought additional witness testimony principally from RC member who performed due diligence for Applicant’s 2009 B List consideration and served on the Selection Panel for the 2009 B-level vacancy. - Sought testimony about “decision process and the irregularities that occurred.” - Identified four other potential witnesses to Department Director’s “general conduct,” including alleged racist and offensive remarks at a high-level international meeting and evidence of favoritism toward a male colleague who was nominated to the B List in February 2009. - Claimed some witnesses were denied by the Grievance Committee or reluctant to testify. - Respondent’s opposition to oral testimony: - Asserted it would not be appropriate for RC member to testify about RC deliberations because RC deliberations are strictly confidential. - Maintained RC member’s views and Applicant’s interview performance are adequately reflected in the written record. - Pre-existing precedents cited by Tribunal: - D’Aoust (No. 2), Judgment No. 2007-3 (May 22, 2007): Tribunal benefitted from Grievance Committee transcript that included testimony by HRD staff who screened applications, all Selection Panel members, RC due diligence member, and HRD Director who chaired RC. - Sachdev: Grievance Committee transcript included SPM testimony detailing selection process and interview impressions; Tribunal quoted Department Director’s testimony that selectee “. . . stood ‘head and shoulders’ above the other candidates (Tr. 367).” - Documentary evidence concerning RC member: - Email of November 24, 2009 from RC member to five other women economists stating she had conducted due diligence and served on Selection Panel in 2009; described Applicant as “heads and shoulders above the rest” among four interviewed candidates; stated she would not go along with the panel proposal and alleged reasons offered at the time included Applicant “is not from the region.” - Email from three RC members to HRD Director, November 24, 2009: RC members’ view that Applicant was “very competitive” for the B List but the Department Director attended the RC meeting (unusual) and “basically gave us a number of reasons why she should NOT be put on the list.” - Tribunal’s assessment approach: - In deciding whether to hold oral proceedings to take additional testimony, the Tribunal weighed sufficiency of the written record, the existing documentary evidence (including RC member emails), and precedents where live testimony supplemented the record. *Source: IMF Administrative Tribunal (j2015-3).* ### 57. The Tribunal is able to compare these written statements of the RC member with the ### Tribunal consideration of oral proceedings, Ethics investigations, and anonymity ### Oral proceedings and witness requests - On September 11, 2014, the Tribunal notified the parties of its decision that oral proceedings would not be “useful” (Rule XIII, para 1) to its Judgment in the case. - The Tribunal denied Applicant’s request for witness testimony by the RC member who served as a member of the Selection Panel for the 2009 vacancy and who participated in the 2009 RC meeting, on the ground of the sufficiency of the written record of the case, as supplemented by the Selection Memorandum. - The Tribunal denied Applicant’s request for witness testimony by other staff members as to the Department Director’s “characteristic hostile treatment of other people,” concluding that, based on Applicant’s proffers as to the proposed nature of such testimony, such evidence would not be probative of the issues of the case. - The Tribunal compared the written statements of the RC member with the account given by the Department Director in his Grievance Committee testimony as to his conduct at the 2009 RC meeting (See 9/15/11 Tr. 62-63). ### Applicant’s request to strike Ethics Office Reports from the record - Applicant requested that the Tribunal strike three documents that Respondent annexed to its Answer: the redacted Reports of Investigation prepared by the Fund’s Ethics Office in response to complaints lodged by Applicant in late 2011 against her former Department Director, SPM, and Division Chief. - Respondent opposed striking the documents, asserting inter alia that the fact of the Ethics investigations is relevant to rebut Applicant’s claim that the Fund failed to address allegations of harassment, retaliation, and discrimination that Applicant had raised with appropriate Fund officials. - The Tribunal grants Applicant’s request to strike from the record the redacted Ethics Reports. - The Tribunal will, however, take notice that Ethics investigations were undertaken and completed, given that Respondent cited the Ethics inquiry in answering Applicant’s allegation that it failed to respond effectively to her complaints of unfair treatment. ### Distinction between Ethics investigations (GAO No. 33) and dispute resolution/Grievance Committee process (GAO No. 31) - The Tribunal recognized that the Ethics Office process of conducting investigations into alleged misconduct pursuant to GAO No. 33 (Conduct of Staff Members) is distinct from the dispute resolution process governed by GAO No. 31 (Grievance Committee) and the Statute of the Administrative Tribunal, by which staff members may challenge the legality of administrative acts of the Fund adversely affecting them. - The Fund’s internal guidance (HR Web: Discrimination Appendix 1, E. Formal Mechanisms) sets out two formal avenues: - 1. Filing an Ethics complaint to the Ethics Advisor to seek cessation of discriminatory behaviors; the Ethics Advisor may conduct a preliminary investigation and, if grounds are found, proceed with an inquiry that could lead to disciplinary measures. - 2. Seeking redress for the damaging effect that discrimination has had on career decisions through the dispute resolution system (GAO No. 31), typically via the Grievance Committee and, if dissatisfied, by filing an application with the IMF Administrative Tribunal (IMFAT). - The Tribunal noted this is the first case raising the question of what relevance, if any, findings of the Ethics Office have upon the Tribunal’s consideration of an application alleging that purported misconduct adversely affected employment conditions. ### Weight and admissibility of Ethics Office findings in Tribunal proceedings - The Tribunal observed limitations on the weight it may give to Ethics Office findings, citing factors that include: - (i) the Tribunal’s duty to assess independently the claims raised in an application so as to fulfill its obligation “. . . as a judicial body, to determine whether a decision transgressed the applicable law of the Fund,” Commentary on the Statute, p. 13; - (ii) the confidential nature of the investigatory process, by which the reports of investigation are withheld from the complaining party; - (iii) the requirement that, as a judicial body, the Tribunal is to draw its conclusions based on evidence tested through an adversary process. - Accordingly, in the absence of a compelling reason, the Tribunal will not ordinarily have a basis for taking account of the findings of Ethics investigations. - The Tribunal concluded that it would not be appropriate to give weight to the findings made by the Ethics Office in response to Applicant’s complaints, given the distinct purposes, fact-finding methods, and standards of proof of the Ethics and dispute-resolution channels. - The Tribunal noted that when the outcome of an Ethics process is adverse to a staff member charged with misconduct, that staff member may challenge the disciplinary decision before the Tribunal and that the Tribunal’s degree of scrutiny in reviewing a finding of misconduct is comprehensive. - The Tribunal also noted that a finding by the Ethics Office exonerating a staff member cannot be accepted as dispositive of the factual and legal issues bearing on whether alleged misconduct improperly affected career decisions or constituted a pattern of unfair treatment, because the Tribunal has plenary judicial authority to determine those questions. ### Anonymity and protection of personal information - Applicant requested anonymity pursuant to Rule XXII of the Rules of Procedure; Respondent did not oppose the request. - The Tribunal reaffirmed that granting anonymity is an exception to the ordinary rule of public party names and that allegations of misconduct can warrant anonymity (citing jurisprudence including IMFAT Judgment No. 2014-2; IMFAT Judgment No. 2006-5). - The Tribunal granted Applicant’s request for anonymity, given allegations of misconduct against staff members, a claim of a pattern of retaliation, harassment and discrimination, and a challenge to the assessment of her work performance through the APR process. - Respondent requested that the Tribunal’s Judgment refrain from disclosing other staff members’ names, position titles, department, and division titles; the Tribunal acceded to that request in accordance with its usual practice. - The Tribunal emphasized the need to “weigh[ ] the benefits of public justice against the privacy interests of individuals” and to be circumspect in dissemination of personal information while providing full and comprehensible reasons for its decision. - The Tribunal reaffirmed the importance of vigorous enforcement of the Fund’s internal law protecting complainants and witnesses in the dispute resolution process from retaliation (citing GAO No. 31 (Grievance Committee), Rev. 4 (October 1, 2008), Section 10; GAO No. 33 (Conduct of Staff Members) (May 18, 2011), Section 4.01(v) and Annex 6). *IMF Administrative Tribunal Judgment excerpt.* ### 78. The key facts, some of which are disputed between the parties, may be summarized as ### j2015-3 - 78. The key facts, some of which are disputed between the parties, may be summarized as ### A. Developments in 2006–2008 - Applicant received an APR rating of “Outstanding” in 2006. The Department Director testified that the rating significantly recognized a particular research paper that was later published in a leading professional journal. (9/15/11 Tr. 58.) - Applicant was promoted to Grade A15 in 2006. (7/10/12 Tr. 149.) - Applicant’s timeline, part of the record of the case, indicates the paper was published in 2008. - In 2007 Applicant reported alleged misconduct by a senior official who served as her direct supervisor. Allegations included sexual harassment of a consultant while on mission, biased attempts to prevent conversion of a term staff member to permanent staff, sexist and racist comments, inappropriate interference to provide advantages to “selected attractive young women,” and hostility towards Applicant’s staff. (7/9/12 Tr. 41–49.) - Applicant reported that one staff member was “very upset” at the official’s providing an advantage to a “pretty young woman” that interfered with work, and that an “African staff member” reported being in tears about racist comments by the official. (7/9/12 Tr. 43–44.) - Applicant testified the unfair attempt to prevent conversion of a capable staff member was the “straw that broke the camel’s back,” prompting her to report the misconduct to the Department Director and to indicate some section members were willing to provide observations. (7/9/12 Tr. 44–49.) - The Department Director raised the matter with Fund Management, and the supervisor was disciplined as a result. (9/15/11 Tr. 65–66.) - Applicant alleges the improper behavior continued, with the supervisor becoming “more careful in making racist comments” but continuing to “go after women,” and that many women reported feeling uncomfortable with him. (7/9/12 Tr. 50–51.) - In Grievance Committee testimony the Department Director said, in retrospect, he thought the supervisor’s actions were “just ill-judged humor.” (9/15/11 Tr. 66.) - During the 2007 APR round, a few months after Applicant’s complaint, Applicant states her APR rating and MAR (Merit-to-Allocation Ratio) declined “precipitously.” (7/9/12 Tr. 63.) Applicant’s immediate supervisor told her he had proposed her for an “outstanding” rating but that the Department Director reduced her APR rating. (7/9/12 Tr. 64.) - In the 2008 APR round Applicant’s immediate supervisor again informed her he had proposed “outstanding” but that the Department Director reduced her rating to “average.” Applicant’s FY2008 APR described her work as “outstanding,” noted recent publications in leading professional journals, stated she “played a critical role” in the Division’s success, and concluded she was “an outstanding performer in a number of diverse areas.” Applicant’s MAR for FY2008 is given as 1.02. (Applicant’s FY2008 APR.) ### B. Developments in 2009 - In advance of the February 2009 RC meeting, the Department nominated Applicant and a male colleague for inclusion on the B List, which facilitates promotion of senior economists to B-level positions in the Fund. The colleague, but not Applicant, was accepted for the B List as a result of the 2009 RC meeting. - Applicant alleges the Department Director undermined her candidacy at the 2009 RC meeting; three RC members reported Applicant was “very competitive” but that the Department Director came to the meeting and “basically gave us a number of reasons why she should NOT be put on the list.” (Email from three RC members to HRD Director, November 24, 2009.) - The Department Director testified he made supportive comments at the RC meeting but did not “gild the lily,” stating candidates have “strengths and weaknesses.” (9/15/11 Tr. 62–63.) - The RC’s Feedback Summary after the RC decision stated: basis for decision—“Shows potential but needs further seasoning/development/testing.” Strengths: “Strong and versatile macroeconomist; Very strong analytical skills and publication record; Excellent researcher and teacher.” Development Needs: “Expand managerial (including supervision of economists) and mission leadership experience; Strengthen diplomacy with supervisors.” Overall comment: RC recommends expanding managerial experience to be more competitive for the RC List. - Shortly after the 2009 RC decision, a B-level vacancy was advertised in Applicant’s Department. Because Applicant was not on the B List she was initially ineligible, but HRD allowed the Department to open the vacancy to A15 staff not on the B List shortly before the closing date. The deadline was extended by one week; Applicant applied immediately and the SPM noted her application in an email to the Department Director. - An RC member was included on the Selection Panel once A15 non-B List candidates were considered. Applicant and three other staff were interviewed. - The Selection Memorandum stated all four interviewed candidates “. . . had strong records and would likely be successful in the position.” Based solely on interviews, the panel ranked candidates as [Applicant], [selectee], [other two]. After considering factors beyond interviews, most of the panel ranked [selectee] ahead of [Applicant]. - The Selection Memorandum justified recommending the selectee on these grounds: strongest in explaining the Fund and eliciting financial support in the region; fluent in the regional language; good network of contacts in the region and familiarity with political and economic subtleties; had been “in-charge” of the Division for nine months and did an excellent job; as a national of the region she would bring valuable diversity for frequent contacts with regional officials. - The RC member on the Selection Panel reviewed a draft Selection Memorandum, suggested two edits to enhance Applicant’s publications description (“in top academic journals”) and to change “good” to “very strong” for management and leadership skills; both edits were incorporated. - The Fund informed the Tribunal that no formal comparative grids or documents showing respective ratings of each candidate currently exist, if they ever existed; the former SPM stated there was no formal comparative table of the candidates. - Applicant contends the lack of formal comparative documentation supports her view the decision not to select her “stems from the improper discriminatory and retaliatory motives of the [Department] Director . . . and his personal animosity toward [her].” - In a November 24, 2009 email to senior women economists, the RC member on the Selection Panel described the selection process: “Of the 4 candidates we interviewed, [Applicant] was heads and shoulders above the rest—this was acknowledged by the panel but they chose their favorite candidate in the write up. I basically told them that I would not go along with their proposal—was reflected in the write up (there are records of all this). The only reason I was told as to why [Applicant] did not cut it is because she is not from the region . . . .” (Email from RC member to five senior women economists, November 24, 2009.) - The Department Director explained the selection decision in Grievance Committee testimony: “It was advantageous to be connected in [the region] and advantageous to speak some [language of the region],” asserting the selectee fulfilled these criteria as a native of the region. (9/15/11 Tr. 241–242.) - After the selection, the RC advised HRD that Grade A15 candidates not on the B List should not have been considered. (9/16/11 Tr. 356 [testimony of SPM].) The Fund stated the selection decision was “not implemented” and the requisition was cancelled. The selectee was placed in the position on an “in charge” basis later in 2009; Applicant was informed the Department Director expected the staff member to be appointed formally in the future. (7/10/12 Tr. 130.) - Applicant’s FY2009 rating year events: Applicant’s immediate supervisor (previous subject of misconduct complaint) left the Fund; the new supervisor, the Division Chief, told Applicant he considered her performance “outstanding” but had reduced her rating to average to be seen as a “team player” by the Department Director; the supervisor denied being under pressure to change ratings. (9/16/11 Tr. 440–441, 443–444.) - The Division Chief characterized the Department Director as a “strong personality” and said being a “good soldier” or team player was an appropriate attribute in that context; he stated he may have advised Applicant on approaches to influence the Department Director. (9/16/11 Tr. 447–448.) - On her FY2009 APR Applicant was rated “Fully Met (FM)” on fourteen competencies and “Consistently Exceeded (CE)” on four competencies: specialty knowledge, sound judgment/analytical skills, planning and organizing, and oral presentation skills. (Applicant’s FY2009 APR.) - The Division Chief’s “Overall Assessment” for FY2009: Applicant established herself as an effective partner in managing the Division, demonstrated excellent organizational skills handling multiple, time-sensitive assignments, is publishing in prestigious refereed outlets with impact inside and outside the Fund, and is “ready to assume higher levels of management responsibility.” The APR made no mention of shortcomings. (Applicant’s FY2009 APR.) - The SPM’s sign-off on the FY2009 APR: Applicant is a “very strong economist and an excellent manager. I agree that [Applicant] is ready to take on a B-level position.” Applicant’s MAR for FY2009 is given as 1.00. (Applicant’s FY2009 APR.) - In late July 2009 the Department Director told Applicant he intended to make the selectee acting Division Chief and that the selectee was more competitive for the B List; the Director told Applicant the Department would not nominate her for the next B List round. (7/9/12 Tr. 139–140; 9/11/11 Tr. 213.) *Record of the case, Grievance Committee proceedings, and Tribunal documents.* ### 104. In the same meeting of July 2009, Applicant states, she raised with the Department ### j2015-3 - 104. In the same meeting of July 2009, Applicant states, she raised with the Department ### July 2009 meetings and alleged comments by the Department Director - Applicant states she raised concerns about her APR ratings with the Department Director, noting her publication in a leading professional journal. Applicant testified that in that conversation the Department Director reacted “instantly with anger, saying ‘[the publication in the journal] doesn’t mean beans.’” (7/9/12 Tr. 141.) - Applicant asked how to improve her ratings; she testified the Department Director said she could “use charm, humor and personal appeal to him.” (7/9/12 Tr. 141.) - Applicant testified that after the RC’s decision not to advance her to the B List in 2009, the Department Director called her to his office and “essentially launched into a personality diatribe,” telling her she needed to be more “charming” and suggesting she could “tell jokes” as a way to be more charming. (7/9/12 Tr. 96–98.) - Applicant also testified the Department Director commented she “looked younger than her age and had plenty of time for promotions.” (7/9/12 Tr. 97–98.) ### Department Director’s account and characterization of advice - The Department Director testified that he emphasized considering a “bundle of attributes” for promotion, listing: “the analytics, the ability to write and speak clearly and persuasively, with gravitas, their managerial strengths, which means leadership, intellectual leadership, empathy with colleagues and subordinates, and all of that sort of thing.” (9/15/11 Tr. 69–70.) - He testified Applicant had a “tendency to argue a case - - to flog a dead horse” and that he advised her: “don’t try and bludgeon people with your view. Try and coax them into your view… You’ve got to persuade people, coax them into your position rather than just trying to beat them into it.” He summarized: “It’s a case of using more charm than aggression.” (9/15/11 Tr. 70–71.) - The Department Director stated it was “quite likely we did - - we certainly had a meeting where I was trying to get those points across, because I thought it was essential, if she was going to get on in the Fund, to learn those kinds of skills.” (9/15/11 Tr. 70–71.) ### Applicant’s characterization, complaints, and HRD response - Applicant regarded the Department Director’s alleged advice about improving APRs via “charm, humor and personal appeal to him” as sexual harassment and met with the Fund’s Ombudsperson in July 2009 to complain of a pattern of sexual harassment by the Department Director since 2007. (7/9/12 Tr. 141.) - Applicant testified she met with the HRD Director in October 2009 and raised the same issues. Applicant’s account: the HRD Director “expressed sympathy” but focused on whether Applicant was considering leaving the Fund, saying if she experienced what Applicant described she “wouldn’t work in that kind of environment and… would leave.” Applicant testified: “Beyond that, she didn’t really address the point any further.” (7/9/12 Tr. 152–153; 7/9/12 Tr. 151.) - The Fund asserted it was “highly implausible” that the HRD Director, also female, would have ignored a legitimate complaint by a senior female economist and encouraged her to leave; the Fund noted Applicant did not raise an issue of “nonfeasance” by the HRD Director and therefore the Fund did not investigate that complaint through administrative review or call the HRD Director as a witness in the Grievance proceedings. ### Internal exchanges among senior women economists (WEN) and RC action - On November 23, 2009, Applicant emailed seven senior women economist staff (a subset of the Women’s Economist Network, WEN) describing her experience: that research output had been presented as an important APR component, she had a paper accepted in a premier journal, yet the Department Director “over-ruled my boss and instead significantly lowered my ratings,” saying “[an article in that journal] doesn’t mean beans,” and advising she could “use charm, humor, and personal appeal” to him. (Email from Applicant to seven women economist staff, November 23, 2009.) - Responses among WEN members expressed concern about women “plateauing unfairly at A-15,” discussed advising Applicant to speak to the Ombudsperson and to “try to get out of [the Department],” and warned that “crossing Mr. X can be a lethal proposition.” (Email exchange of November 23, 2009.) - On November 24, 2009 three RC members sent a confidential message to the HRD Director (RC Chair) describing Applicant’s case as “a very serious matter of unfair treatment of an apparently high performing A15 woman,” asking whether Applicant’s Department was nominating her for the forthcoming B-list and requesting that HRD or the RC “question why this is not happening.” The message repeated Applicant’s account that the Department Director had said “[an article in that journal] doesn’t mean beans” and advised she could “use charm, humor, and personal appeal” to him. (Email from three RC members to HRD Director, November 24, 2009.) ### 2010 developments: RC nominations, vacancy, lateral transfer - Following follow-up communications between the HRD Director and Applicant’s Department, the Department nominated both Applicant and the female staff member who had served “in charge” of the 2009 position to the B List. At its January 2010 meeting, the RC advanced both nominees to the B List. (9/15/11 Tr. 214–225; January 2010 RC meeting.) - A new requisition for the previously advertised vacancy was issued following the January 2010 RC decisions; the vacancy was filled in spring 2010. Applicant did not apply for the vacancy; the same staff member recommended in 2009 was promoted to the position. - Applicant testified she did not apply because after the Department Director’s July 2009 statements she “felt that I could not see putting myself in a position of being his direct subordinate,” and that she was “making every possible effort to get out of the department, even if that meant moving laterally at A-15.” (7/10/12 Tr. 66.) - In spring 2010 Applicant transferred laterally to a position in another Department while retaining her A15 grade level, seeking to “escape the hostility of [her Department’s] senior staff.” ### Mentoring intervention and hiring due diligence in new Department - A senior official in the new Department who had supervised Applicant earlier encouraged Applicant to apply to get away from the prior Department, participated in the WEN exchange, and believed the “real reason” Applicant was not advanced in 2009 was that the Department Director had undermined her candidacy. - That official testified she told the new Department’s SPM to “look beyond Applicant’s MARs,” to “just ask her tough economic questions and see how she responds in the due diligence,” and that “if there is a piece of misinformation you’ve got to put it aside and look at the candidate.” (7/9/12 Tr. 164–167, 185, 192–193, 198.) ### Applicant’s APR for FY2010 (May 1, 2009–April 30, 2010) and rating - The FY2010 APR covered the rating period May 1, 2009–April 30, 2010 and was prepared by the Department in which Applicant had worked during that period. - Applicant listed her publications, noting the paper in the leading journal had been cited by “many other int’l organizations and scholars.” The Division Chief’s comments: Applicant “had another successful year conducting high-quality research . . . as evidenced by publications . . . . Applicant’s research . . . is having substantial impact inside and outside the IMF. . . . Several high profile economists have cited [Applicant]’s work.” (Applicant’s FY2010 APR.) - Division Chief strengths noted: “Analytical Skills - Analyzes issues and problems in a thorough, systematic manner; focuses on critical details while keeping sight of the big picture; makes well-reasoned, timely, and sound decisions”; “Oral Presentation Skills - Speaks clearly, articulately, and persuasively to command attention, establish credibility and gain influence”; “Planning and Organizing - Develops realistic plans, sets goals, aligns plans with company goals, plans for and manages resources, creates contingency plans, coordinates/cooperates with others.” - The Division Chief characterized Applicant as an “accomplished manager” and mentor, an “effective and accomplished public speaker,” and wrote she “is fully capable of running her own division.” He recommended Applicant “could benefit from additional, higher-level management training and regular coaching as she assumes the more complex role of leading area department missions.” (Applicant’s FY2010 APR.) - Applicant was rated “Effective,” the lowest rating on a scale that allowed Departments to rate up to 15 percent of their staff as “Superior” and another 15 percent as “Outstanding” (the top rating). The APR form states the rating represents the staff member’s “Relative Performance Level,” “derived from both absolute performance (contributions against objectives and other assignments, plus competencies displayed) and relative performance (peer comparisons, complexity/difficulty level of the assignments, impact on division/departmental results and workload) during the assessment period.” (9/16/11 Tr. 257.) *Excerpt from IMF grievance record and related testimony and internal communications as reported in the provided material.* ### 125. In early 2011, the Department in which Applicant had been serving until spring 2010 ### j2015-3 - 125. In early 2011, the Department in which Applicant had been serving until spring 2010 ### Vacancy in Applicant’s former Department (early 2011) - The Department in which Applicant had been serving until spring 2010 advertised another B1 vacancy in early 2011. - Applicant considered herself well qualified but chose not to apply because the Department Director was the immediate supervisor of the position and Applicant stated she was “denied the chance to apply for the job, given that [my Department Director] had previously harassed me and discriminated against me over a period of several years. I could thus not take up the position for fear of further endangering myself.” - Another staff member was appointed to that position effective in April 2011. ### Applicant’s promotion to a B1 vacancy in a third Department (May 2011) - Applicant transferred in 2010 to another Department while retaining her A15 grade level. - Applicant applied for and was selected to a B1 position in a third Department. - The effective date of that appointment was in May 2011. ### Revision of B1/B2 promotion policy and exemption requests (July 2011–September 2012) - On July 1, 2011, the Fund announced a new promotion policy that: - Extended the minimum time-in-grade (TIG) from 12 months to 18 months for economists to become eligible for promotion from Grade B1 to Grade B2 during the annual promotion exercise each November 1st. - Provided as a transitional measure: “As a transitional measure for the upcoming November 2011 round, the TIG for economist promotions to B2 will be maintained at 12 months.” (Memorandum from Deputy Managing Director to Fund Staff, “Management Approval of Promotion Policy Reform,” July 1, 2011.) - Because Applicant was promoted to B1 in May 2011, under the new policy she would not become eligible for promotion to B2 until November 1, 2013. Requests for exemption on Applicant’s behalf - Early July 2011: A request for exemption was made informally by Applicant’s SPM and discussed with HRD officials. - July 11, 2011: HRD denied the informal request, stating Applicant “. . . will fall under the new rules. Management’s decision was to grandfather only those who have one year time-in-grade on November 1, 2011.” (Email exchange of July 8, 11, 2011.) - July 13, 2011: A formal Memorandum from the SPMs of Applicant’s second and third Departments to the HRD Director requested an exemption to permit Applicant to become eligible for promotion to Grade B2 in the November 1, 2012 promotion round. The Memorandum argued Applicant “would fall just short of the 18-month requirement for possible promotion to B2 effective November 1, 2012” and that the impact “seems excessive and not in line with the spirit of the change in the promotion policy.” (Memorandum from SPMs to HRD Director, July 13, 2011.) It appears that the July 13, 2011 Memorandum went unanswered. - July 13, 2012: Applicant’s SPM renewed the request for exception (Email from SPM to HRD Director, July, 13, 2012). - September 11, 2012: HRD denied the renewed request, stating: “The policy included a transitional measure for the November 2011 promotion round, allowing promotion of economists with 12 months time-in-grade at B01 by that time. However, this transitional measure was for the 2011 November round only, and limited to those who met the one-year TIG by November 2011 and therefore had a reasonable expectation of being considered for promotion that year.” (Memorandum from HRD Deputy Director to SPM, September 11, 2012.) - September 25, 2014 (affidavit): The Fund stated that “HRD did not apply this transitional measure to any B1 economists other than those who had 12 months time in grade by November 2011.” (Affidavit of HRD Deputy Director, September 25, 2014.) ### Channels of administrative review and procedural history (December 2010–July 2012) - Overview: Claims in Applicant’s Application arose through the channels of administrative review provided by GAO No. 31; the chronology below tracks Applicant’s use of those channels and subsequent Grievance Committee proceedings. Applicant’s First Request for Administrative Review (December 8, 2010) - December 8, 2010: Applicant filed her first request for administrative review, asserting her relative and absolute performance had been consistently at the top of her Department for the APR years FY2007 through FY2010. - Applicant alleged the Department Director “. . . actively discriminated against [her] as a woman economist for being too exceptional in [her] performance.” (Documentation for [First] Administrative Review, p. 3.) - Allegations included a “pattern of discrimination and sexual harassment in APR ratings and promotions,” that the Director “created a general environment in which personal bias, favoritism, discrimination, hostility and harassment flourished,” and that rating and promotion decisions were “systematically made based on friendship and non-performance factors.” (Id.) - Applicant alleged the Director told her in March 2009 she should be more “charming” with him and to be patient because she was young and looked younger than her age. (Id., p. 15.) - Applicant sought remedy for damaged career prospects and APR impacts. HRD’s Response to Applicant’s First Request (April 13, 2011) - April 13, 2011: HRD Director denied Applicant’s administrative review request for FY2007–FY2009 APRs as out of time under GAO No. 31, Section 6 (six-month filing rule), and focused review on the FY2010 rating. - HRD found that Applicant’s 2007 paper had been included in her 2006 APR (for which she received an outstanding rating) and that other research had been included in APRs; HRD “did not find any evidence that [Applicant’s Department]’s relative assessment of [her] performance compared to [her] peers was based on improper considerations and that it should have been rated above the ‘effective’ level.” (Memorandum from HRD Director to Applicant, “Your Request for Administrative Review,” April 13, 2011.) - On discrimination and harassment allegations, HRD concluded it “had found no evidence that the Department Director’s actions were ‘improper or that his rating of [Applicant’s] performance was motivated by bias or other improper motives.’” HRD concluded the FY2010 APR rating resulted from consensus among senior staff and reflected the Division Chief’s proposal, endorsed in Departmental roundtable. (Id.) Applicant’s First Grievance (June 9, 2011) - June 9, 2011: Applicant filed a Grievance with the Fund’s Grievance Committee challenging the FY2010 APR rating of “Effective.” - Applicant alleged the FY2010 decision was based on “discrimination, bias, capricious and irrelevant factors” and that she should have been rated “outstanding” for FY2007–FY2010. (Grievance, June 9, 2011, p. 1.) - Applicant alleged the Department Director engaged in “verbal harassment to [her] over this same period, including sexual harassment,” and that managers “created and allowed a hostile and biased work environment.” (Id., p. 5.) - Applicant responded to the timeliness issue by asserting she could not file administrative review earlier because she was in the Department and would have faced retaliation; she argued a pattern from 2007–2010 was material to understanding the 2010 decision and therefore presented evidence from 2007–2010 while seeking relief only for 2010. (Appeal to Grievance Committee: Response to Administrative Review, p. 1.) Grievance Committee proceedings (September–November 2011 and July 2012) - The Grievance Committee held witness hearings beginning in September 2011. - The Committee decided at the pre-hearing conference it had jurisdiction only over the FY2010 APR challenge but allowed broad evidentiary leeway regarding prior years to establish possible patterns of retaliation, gender discrimination, and harassment. (Grievance Committee Recommendation and Report, October 15, 2013, pp. 26-27.) - November 14, 2011: The Committee held a hearing on procedural issues, including the Fund’s Motion to Suspend Hearing because the Ethics Office was investigating related allegations of misconduct by senior officials of Applicant’s former Department. Both parties later agreed to resume proceedings despite the ongoing Ethics Office investigation, and further witness hearings were held in July 2012. Applicant’s Additional Requests for Administrative Review (November 14, 2011) - October 14, 2011: In response to discovery, the Fund produced an email of November 24, 2009 from three RC members to the HRD Director (reproduced at para. 114). - November 14, 2011: Applicant filed two new requests for administrative review: - Request 1 (“Request for Administrative Review of Vacancy Selection”): Challenged her Department’s decision not to select her as Division Chief in 2009, asserting withheld material information disclosed October 14, 2011 indicated discrimination. Applicant alleged she was barred from that position due to discrimination, bias, harassment, hostility, and retaliation, which she said prevented promotion to B1 in mid-2009 and eligibility for B2 on November 1, 2010. Sought promotions to Grades B1 and B2 retroactive to mid-2009 and November 1, 2010, respectively, and associated retroactive salary increases and relief for working in a hostile work environment. (Memorandum from Applicant to Acting HRD Director, “Request for Administrative Review of Vacancy Selection,” November 14, 2011.) - Request 2 (“Request for Administrative Review of Vacancy Selection, Effective Date of Promotion, and Associated Application of B1-B2 Promotion Policy”): Challenged three decisions collectively affecting her career: (1) selection decision for the B1 position in her former Department effective April . . . 2011; (2) Applicant’s May . . . 2011 effective date of promotion to B1 in her new Department; and (3) application of the revised B1-B2 promotion policy as communicated on September 7, 2011. Applicant asserted she was barred from the April 2011 vacancy for discriminatory reasons and sought an earlier effective appointment date so she would not be disadvantaged by the July 1, 2011 policy change. Applicant sought eligibility for promotion to B2 as of November 1, 2012, or earlier. (Memorandum from Applicant to Acting HRD Director, “Request for Administrative Review of Vacancy Selection, Effective Date of Promotion, and Associated Application of B1-B2 Promotion Policy,” November 14, 2011.) - HRD’s responses to these additional requests were issued on December 13, 2011 (not reproduced in the supplied excerpt). *Source: IMF administrative record excerpt (j2015-3).* ### 150. Both of Applicant’s new requests for administrative review were denied a month later, on ### j2015-3 - 150. Both of Applicant’s new requests for administrative review were denied a month later, on ### Denial of administrative review requests (December 13, 2011) - Both new requests for administrative review were denied on December 13, 2011. - Request concerning non-selection for the 2009 vacancy: - Denied on the ground that Applicant failed to initiate administrative review within six months of the challenged decision. - Acting HRD Director noted merits: “Even if your application had not been time barred, the record for that selection process does not support your claims. . . . While you were indeed ranked first based solely on the interviews, another candidate was ranked ahead of you taking into account factors beyond the interviews.” - Acting HRD Director found the selection decision based on an “objective assessment of the candidates’ respective strengths and experience and the requirements for the position.” - Conclusion: “no basis for [Applicant’s] claim that the vacancy selection decision was based on discrimination or other irrelevant factors.” - Acting HRD Director’s additional findings on the 2009 vacancy: - The Department withdrew the 2009 vacancy after RC feedback because “neither [Applicant] nor the preferred candidate was on the Review Committee list at the time (which was a requirement for appointment to a B-level fungible economist position . . .).” - Applicant’s statement that she could have been promoted to B1 in mid-2009 was found to be “incorrect.” - When re-advertised in March 2010, Applicant did not apply, although she had been accepted onto the B List by that time. - On issues relating to the 2011 vacancy, effective date of Applicant’s promotion in her new Department, and application of the new B1-B2 promotion policy: - (i) Applicant had no standing to challenge a selection process for a position for which she had not applied. - (ii) No basis to challenge the effective date of her B1 promotion; no allegation of fault with the selection process and no apparent undue delay in appointment. - (iii) The new promotion policy (announced July 1, 2011) included transitional arrangements, but Applicant “fell well short of the 12 months of service at B1 that would have allowed [her] to be promoted in November 2011” and there was no basis to make an exception to allow promotion short of the new 18-month requirement. ### Applicant’s second Grievance (December 16, 2011) and dismissal by Grievance Committee (April 25, 2012) - Applicant filed a second Grievance on December 16, 2011, asking that new claims be considered “in conjunction with the hearings related to [her] existing case.” - New Grievance repeated claims from administrative review, including a request for compensation for “working in a hostile work environment,” and sought an exception to “grandfather” her under the previous 12-month rule for B1→B2 promotion. - Fund filed a Motion to Dismiss on January 6, 2012; Applicant responded on March 30, 2012. - Grievance Committee granted the Motion and dismissed the new claims on April 25, 2012. - Reasons for dismissal: - Applicant failed to demonstrate “exceptional circumstances” to excuse her two-year delay in initiating administrative review of the 2009 non-selection; discovery of the November 24, 2009 email did not constitute such exceptional circumstances because Applicant “already possessed more than enough information to support a request for administrative review within the six months following her non-selection.” - On the 2011 vacancy for which Applicant had not applied, Committee concluded “[N]either fear nor futility can excuse a staff member from applying for a promotion before challenging the decision to fill the position. Staff members have no standing to complain about a promotion decision if they decline to apply for the promotion.” - Because the Committee lacked jurisdiction over Applicant’s challenges to particular vacancy selections, there was no viable claim relating to the promotion policy. - On May 30, 2012, the Grievance Committee reaffirmed its dismissal following Applicant’s request for reconsideration. - On June 8, 2012, Respondent informed Applicant that the Committee’s dismissal of claims arising through her requests for administrative review of November 14, 2011 should be considered final for ripeness of review by the Administrative Tribunal. ### Tribunal judgment in Ms. “GG” I (October 8, 2013) and related procedural posture - Applicant filed her first Application to the Administrative Tribunal on July 23, 2012, arising from the Committee’s dismissal of her second Grievance. - Respondent filed a Motion for Summary Dismissal under Rule XII; issue before Tribunal was limited to admissibility. - Tribunal Judgment in Ms. “GG” I rendered October 8, 2013: - Tribunal found claims before it (dismissed by the Grievance Committee on jurisdictional grounds) were “closely allied” with a claim challenging Applicant’s FY2010 APR that remained pending before the Grievance Committee. - Tribunal cited precedents to conclude that entertaining the Application before conclusion of the Grievance proceedings and Fund Management’s decision on the FY2010 APR would fail to serve Article V exhaustion goals. - Tribunal dismissed Applicant’s first Application for failing to meet Article V, Section 1 exhaustion requirements. - Dismissal was without prejudice to Applicant’s right to bring a new Application and without prejudice to Respondent’s right to raise other admissibility issues later. - Applicant’s instant Application and Fund’s Answer later address admissibility issues not resolved in that Judgment. ### Grievance Committee Recommendation and Report on initial Grievance (October 15, 2013) and subsequent action - While the Tribunal proceedings were pending, Grievance Committee continued proceedings on Applicant’s initial Grievance, including witness hearings in 2012 and additional evidentiary motions. - On October 15, 2013, the Grievance Committee recommended denial of the Grievance challenging Applicant’s FY2010 APR. - Committee’s view: FY2010 APR decision “was based on a comparison of the quality and quantity of her work and was not influenced by the allegedly discriminatory or retaliatory motives harbored by [the Department Director].” - Factors leading to rating decision were “legitimate, non-discriminatory and non-retaliatory” and the decision did not represent an abuse of discretion. - On November 12, 2013, Applicant was notified that Fund Management had accepted the Committee’s recommendation to deny the Grievance. - Applicant filed the instant Application with the Administrative Tribunal on February 10, 2014. ### Summary of parties’ principal contentions - Applicant’s principal contentions (summary): 1. Applicant was subject to a pattern of retaliation, harassment, discrimination and a hostile work environment that the Fund failed to address. 2. Department Director undermined her candidacy for the B List in the 2009 RC meeting. 3. Non-selection for B-level positions in 2009, 2010, and 2011 was improperly motivated by retaliation, harassment, and discrimination; 2009 decision influenced by irrelevant factors and violated fair procedures. 4. APR decisions for FY2009 and FY2010 were improperly motivated by retaliation, harassment, and discrimination; based on factual errors and taken in disregard of Fund rules. 5. Timeliness: exceptional circumstances excuse delays in initiating administrative review because: - contested decisions form part of a pattern of prohibited conduct; - Applicant did not discover evidence of discriminatory conduct in relation to 2009 non-selection until October 14, 2011, when documentary evidence was disclosed through Grievance proceedings; - Fund has an administrative practice of remedying past discrimination; - Applicant gave timely notice to rectify possible errors and purposes of administrative review were satisfied; - filing a formal complaint in 2009 would have risked further retaliation. 6. 2010 non-selection was part of a compound decision begun in 2009 when the same vacancy was advertised but not filled; timeliness under GAO No. 31, Section 12.02 (extends time limits day for day for each day staff member is working on Fund business outside duty station or in recognized leave). 7. Standing to challenge 2010 and 2011 non-selections: she was a candidate for 2009 vacancy later re-advertised and filled in 2010; for 2011 vacancy she was effectively barred from applying due to sexual harassment resulting in “constructive discharge.” 8. The 2011 revision to the B1/B2 promotion policy is arbitrary and unfairly discriminates against economist staff. 9. The revised promotion policy was unfairly applied to Applicant; Fund improperly failed to grant her the “transitional measure.” 10. Elements of administrative review and Grievance Committee processes constituted due process failures and materially impaired the evidentiary record. 11. Relief sought includes: - revision of FY2009 and FY2010 APR ratings from “Effective” to “Outstanding” and retroactive merit increases; - retroactive adjustment of Grade level to B1 (effective July 2009) and B2 (effective November 2010) and associated salary increases; - compensation for career setbacks and “an unknown number of forgone career opportunities”; - monetary relief for harassment, sexual harassment, bias against diversity, and procedural failures; - monetary relief for breach of confidentiality of her Grievance case by a Grievance Committee member and reprisal by other staff; - compensation for imputed cost of time spent representing herself before the Tribunal and through review channels. - Respondent’s principal contentions (summary): 1. Allegations that the Fund failed to address harassment, retaliation and discrimination in 2009 are non-justiciable, were not raised through administrative review, and lack merit. 2. Complaints about Department Director’s conduct in the 2009 RC meeting are non-justiciable and time-barred. 3. Challenges to non-selection decisions of 2009, 2010, and 2011 and FY2009 APR are inadmissible for failure to launch within six months required by GAO No. 31; no exceptional circumstances excuse delay: - continuing discrimination does not render 2009–2011 claims admissible; - Applicant had sufficient information in 2009 to raise timely challenges; - purposes of administrative review not satisfied for time-barred claims; - alleged fear of retaliation does not excuse untimely filing. 4. The 2009 vacancy selection did not constitute an “administrative act” adversely affecting Applicant. 5. Applicant lacks standing to challenge 2010 and 2011 non-selections because she did not apply. 6. Applicant has not shown FY2010 APR of “Effective” was affected by harassment, discrimination or retaliation; rating reflected managerial discretion with reasonable basis. 7. Challenge to 2011 B1/B2 policy revision is not timely under Article VI, Section 2 of the Tribunal’s Statute (not challenged “directly” within three months) and is not linked to an individual decision; revision was rational and non-discriminatory. 8. Denial of “transitional measure” was not unfair; it applied only to economists at Grade B1 as of November 1, 2010 who had relied for 8 months on expectation of eligibility following 12 months TIG. 9. Alleged due process failures in administrative review and Grievance Committee processes are outside the Tribunal’s jurisdiction. ### Relevant internal-law provisions referenced - GAO No. 33 (Conduct of Staff Members) (May 18, 2011), Annex 2: Harassment Policy *Source: International Monetary Fund (j2015-3).* ### 171. The Fund’s policy prohibiting harassment is set out in GAO No. 33, Annex 2, as follows: ### 171. The Fund’s policy prohibiting harassment (GAO No. 33, Annex 2) and discrimination (Annex 3) ### Harassment Policy — Introduction and scope - The Fund expects employees to treat one another with courtesy and respect and to avoid behavior that may create an atmosphere of hostility or intimidation (paragraphs 1–2). - Employees should not be subjected to harassment at headquarters, on mission or in any Fund duty station (paragraph 2). - Harassment may constitute misconduct and provide a basis for disciplinary action up to and including termination of employment (paragraphs 2, 11). ### What is harassment? — Definitions and illustrative examples - Harassment is behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment; it includes intimidation and sexual harassment (paragraph 3). - Intimidation examples include (paragraph 4): - degrading public tirades by a supervisor or colleague; - deliberate insults related to a person's personal or professional competence; - threatening or insulting comments, whether oral or written—including by e-mail; - deliberate desecration of religious and/or national symbols; - malicious and unsubstantiated complaints of misconduct, including harassment, against other employees. - Sexual harassment is any unwelcome sexual behavior that is offensive or creates a hostile or intimidating work environment and may include (paragraphs 5–6): - sexual assault; - unsolicited requests for sexual favors; - requests for sexual favors linked to implied threats or promises about career prospects; - unwanted physical contact; - visual displays of degrading sexual images; - sexually suggestive conduct or offensive remarks of a sexual nature. - Additional behaviors that could constitute sexual harassment include (paragraph 6): - repetition of suggestive comments or innuendos; - exhibition of sexually oriented materials in the workplace; - crude or obscene language or gestures, or telling risqué or obscene jokes or stories; - repeated and/or exaggerated compliments about personal appearance or comments about physical features; - invitations to social activities or "dates" that persist after a recipient indicates they are not welcome; - deliberate and unsolicited physical contact, or unnecessarily close physical proximity. - Sexual harassment can be a single incident if sufficiently severe; it can occur between persons of opposite sexes or of the same sex (paragraph 5). - Sexual harassment is particularly egregious when linked to direct or implied threats or promises about career prospects, often involving a more senior person and a subordinate (paragraph 7). - Close consensual personal relationships between supervisors and subordinates do not automatically constitute harassment but must be reported under the policy on close personal relationships (paragraph 8). ### Assessing intent, effect, and severity - The definition of harassment considers both intent and effect; an action reasonably perceived as offensive or intimidating may constitute harassment whether intended or not (paragraph 9). - Mildly offensive comments or behaviors can rise to harassment if repeated or pervasive; a single severe incident can be harassment if it poisons the overall working environment (paragraph 10). - Staff are encouraged to seek advice from a supervisor, SPM, HRD, the Ombudsperson or the Ethics Advisor when in doubt (paragraph 11). ### Conduct that would not be considered harassment - Ambiguous behaviors that might offend some but not others—such as comments on clothing, compliments about improved appearance, or unintentionally offensive jokes—would not normally be seen as harassment (paragraph 12). - Reasonable supervisory actions (e.g., moving people, changing work assignments) do not, in themselves, constitute harassment (paragraph 13). - A negative performance report, as such, is not harassment; feedback should be reasonable, constructive, and not used as retaliation (paragraph 14). ### Harassment on mission - Mission settings require special care due to forced proximity; evidence suggests incidence of harassment, including sexual harassment, is much greater in mission environments than at headquarters (paragraph 15). - No staff member on mission should take advantage of proximity to press unwelcome attentions; mission chiefs must act promptly, including through appropriate intervention (paragraph 15). - Mission chiefs should be sensitive to harassment by country officials toward mission members and may limit social interaction where necessary (paragraph 16). - Staff who feel harassed on mission are encouraged to discuss the matter with their mission chief or, if the mission chief is the harasser, contact a supervisor, SPM, the Ombudsperson or the Ethics Advisor at headquarters (paragraph 17). ### Role of the Fund — Prevention, training, procedures, and protections - Supervisors are expected to support an environment free of harassment and to stop harassment in areas under their supervision (paragraph 18). - The Fund will provide training for staff and managers on sexual and other forms of harassment; managers must ensure subordinates are familiar with the Fund’s policies and have received appropriate training (paragraph 19). - The Fund provides resources and procedures intended to preserve confidentiality, prevent reprisal, and promptly resolve problems while protecting the rights of both complainants and respondents; confidentiality may not always be possible, especially when disciplinary action or Grievance Committee proceedings require disclosure (paragraph 20). - Reprisal against anyone who files a complaint in good faith is unacceptable and itself constitutes misconduct subject to disciplinary action (paragraph 21). - HR Web contains further guidance on “What to Do if Subjected to Harassment,” and informational videos are available through the Staff Development Center (paragraph 22). ### Discrimination Policy (GAO No. 33, Annex 3) — Principles and scope - Every Fund employee shares responsibility for a working environment that promotes equal treatment and is free from discrimination; managerial staff must create and maintain a supportive environment and take reasonable actions to prevent/address inappropriate behavior (Annex 3, I). - The policy consolidates standards, defines discrimination in the Fund’s context, and sets out mechanisms available to employees who are subjected to or accused of discrimination (Annex 3, I). - The policy is based on Rule N-1 and Rule N-2 principles regarding recruitment and non-discrimination (Annex 3, I). ### Discrimination — Definition and examples of manifestations - Discrimination refers to differences in treatment not based on the Fund’s institutional needs and that: - are made on the basis of personal characteristics such as age, creed, ethnicity, gender, nationality, race, or sexual orientation; - are unrelated to work-related capabilities, qualifications, and experience (including disabilities or medical conditions that do not prevent performance); - are irrelevant to the application of Fund policies; and - have an adverse impact on employment, job performance, career opportunities, compensation, or other terms and conditions of employment (Annex 3, III). - Discrimination can occur by: - basing career-affecting decisions (salary adjustments, assignments, performance evaluations, promotions, recognition) on grounds other than professional qualifications or merit; - creating or allowing a biased work environment that interferes with performance or career opportunities; - applying a policy or program (annual leave, staff benefits, access to training) in a manner that differentiates among employees for reasons other than policy criteria (Annex 3, III). - Discrimination can be a single adverse decision or a pattern/inaction whose cumulative effect deprives an individual of fair and impartial treatment (Annex 3, III). ### Discrimination — Further information and applicability - HR Web contains additional information on Addressing Discrimination in the Workplace and available resources (Annex 3, IV). - The term “employees” includes both members of the staff and contractual employees, including locally recruited employees in overseas offices (footnote [1]). - The policy supersedes several prior management statements and should be viewed alongside current policy statements such as the 2000 statement on discrimination against persons with HIV and AIDS, Diversity Action Plan, Code of Conduct (1998), Mission Code of Conduct (2002), and Management Standards (2001) (footnote [2]). ### Discrimination Appendices — Appendix 1: Addressing Discrimination (selected procedures and guidance) - Early action is crucial; employees are recommended to talk with a neutral person on alleged discrimination at an early stage (Appendix 1, A). - Employees should have reasonable grounds supported by documents and other evidence (which may include witnesses) before making a complaint; frivolous or malicious accusations may lead to disciplinary measures (Appendix 1, A). - If accused of discrimination, the accused should take the accusation seriously, seek discussion with an objective third party, gather facts and documentation, and consider informal mechanisms (Appendix 1, B). - Discriminatory behavior is misconduct punishable under Fund rules with disciplinary action commensurate with severity, which may include termination (Appendix 1, B). - If employees perceive discrimination against a colleague, they should encourage the affected individual to seek advice or bring the issue to the Department Head, SPM, or ASPM; peers should also raise the issue with SPM or other resources (Appendix 1, C). - Employees who believe a Fund policy or program may have an unintended discriminatory effect may bring it to the Senior Advisor on Diversity or the Director of HRD directly or through the Staff Association Committee (SAC) (Appendix 1, C). ### Discrimination — Informal and formal mechanisms (Appendix 1) - Recommended informal resources before formal steps include (Appendix 1, D): - the immediate manager, second-level supervisor, Department Head, SPM or ASPM; - a Human Resources Officer (HRO) in HRD or a front office HRD staff member; - the Ombudsperson (independent, neutral, confidential advice, mediation/conciliation; may present recommendations if mutual agreement cannot be reached); - the Senior Advisor on Diversity (advice, counseling, mentoring regarding diversity and discrimination); - the Staff Association Committee (guidance on resources/processes and raising group concerns). - Formal mechanisms: employees who believe they have been subjected to discrimination have two avenues of formal recourse that may be pursued (Appendix 1, E). *International Monetary Fund — GAO No. 33 (Conduct of Staff Members) (May 18, 2011), Annex 2 (Harassment Policy) and Annex 3 (Discrimination Policy), with Discrimination Appendices (Appendix 1: Addressing Discrimination).* ### 1. If the individual’s main objective is to ensure that the ### 1. If the individual’s main objective is to ensure that the ### Complaint pathways and initial investigations - If the individual’s main objective is to ensure that discriminatory behaviors cease, a complaint may be addressed to the Ethics Advisor, who will conduct a preliminary investigation into the matter. - On the basis of the Ethics Advisor’s preliminary investigation, if the Director of HRD or the Managing Director believes there are grounds for pursuing an investigation of misconduct, the Ethics Advisor will proceed with such an inquiry and report findings to management or the Director of HRD. - If it is concluded that an employee has engaged in misconduct, including discriminatory behavior, disciplinary measures may be imposed on the respondent. ### Seeking redress for career damage: formal dispute-resolution channels - If the individual’s main objective is to seek redress for the damaging effect that discrimination has had on her/his career (for example, if a decision affecting the individual is discriminatory, or if the Fund has failed to take adequate measures in response to a complaint of discrimination), the employee may seek review through the Fund’s formal dispute-resolution channels. - Normal process: follow procedures for bringing a grievance before the Grievance Committee, including prior administrative review, as set out in GAO No. 31. - If following the grievance process the staff member remains dissatisfied, she or he may file an application with the IMF Administrative Tribunal (IMFAT). ### Administrative Review: required first step and time limits - First formal step: seek an Administrative Review as set out in GAO No. 31. - The administrative review has two stages: - (i) an initial review within six months of the initial decision by a line manager/supervisor in the staff member’s department — in case of matters affecting the staff member’s career or work or in case of decisions on benefits or other centrally administered human resources matters, the review would be carried out by a Division Chief/senior staff in HRD within three months; - (ii) the complainant has the right to appeal to the Director of HRD within 30 days. ### Grievance Committee and IMFAT deadlines and scope - Second formal step: file a grievance before the Grievance Committee as set out in GAO No. 31. The Grievance Committee normally conducts a hearing to prepare a report and recommendation to management on whether the Rules and Regulations of the Fund have been correctly applied or interpreted. - Third step: application to the IMFAT. An application to the IMFAT must be brought within three months after all available channels of administrative review have been exhausted. - The Tribunal’s judgment, including any award of compensation, is final and binding. ### Contractual employees and vendor personnel - Contractual employees: - Do not have access to the Grievance Committee procedures under GAO No. 31 or to the IMFAT. - Their disputes are subject to administrative review by the Director of HRD and, if unresolved, to binding arbitration as provided in the contractual employee’s letter of appointment. - Vendor personnel: - May bring a complaint to the Ethics Advisor if they believe a Fund employee engaged in discriminatory behavior toward them. - Vendor personnel have no direct legal recourse against the Fund; depending on circumstances, such discrimination may give rise to contractual claims against the Fund by the companies for which they work. ### Appendix 2 — Resources (roles listed) - SPMs or ASPMs: information, advice, and implementation of the policy in the department, including addressing discriminatory behavior or action when required - Director of HRD: formal complaints, implementing the policy in the Fund, and ensuring compliance - Ethics Advisor: preliminary investigations of complaints or formal investigations when requested by management or the Director of HRD - HROs in HRD for respective department: information and advice - Ombudsperson: confidential advice or assistance through mediation or conciliation - Senior Advisor on Diversity: information and advice - The SAC: guidance and advice - The Joint Bank/Fund Library: books and videos on diversity, discrimination, and harassment ### Distinguishing discrimination from nondiscriminatory conduct - Inappropriate workplace behavior alone is not discrimination; if such behavior systematically targets certain individuals or groups, it may be discriminatory. - Harassment, unfair treatment, abuse of power, and favoritism are separate from discrimination but can become discriminatory if they develop into a pattern that systematically affects certain individuals or groups and impacts performance, development, career opportunities, or career progress. - Managers’ business decisions that are not favorable to individual employees are not by themselves harassment, discrimination, or retaliation; criticism or adverse decisions about performance or work assignments do not of themselves constitute harassment, discrimination, or retaliation. - Negative assessment or feedback on performance, even if frequent and long term, or denial of a promotion is not discrimination if based on standards applicable to and communicated to all relevant employees. Feedback should be accompanied by constructive suggestions for corrective actions; using criticism to demean or belittle employees publicly is inappropriate. - Setting disparate standards or giving biased feedback depending on an individual’s gender, race, or other irrelevant factors can be a form of discrimination. - The Fund’s working language is English; oral and written English communication skills are crucial performance competencies. Negative assessment based on language skills alone should not be perceived as discrimination. - Certain policies (for example, the Economist Program (EP) and mandatory retirement) require age to be used as one criterion; benefits offered exclusively to some employee categories (for example, expatriates and employees with spouses or domestic partners) are not in themselves grounds for discrimination claims. - The Fund’s organizational culture—high performance standards, hard work, merit-based career competition, and frequent travel—creates stress that can lead to perceived bias; stressful work is not an excuse for unprofessional or discriminatory behavior. ### Retaliation policy (GAO No. 33, Annex 6; May 18, 2011) - Policy Statement: - The Fund encourages use of channels for speaking up, reporting suspected misconduct, raising ethical concerns, and participating in dispute resolution. - The Fund does not tolerate any form of retaliation against anyone for using these channels or for participating as a witness in an ethics investigation or grievance. - Retaliation against a staff member for raising an ethics complaint or a grievance, or for participating as a witness, is misconduct that could result in disciplinary action; any adverse decision motivated by retaliation would be invalid. - See also: GAO No. 31, Section 9; GAO No. 33; SB 08/11 - Guidance Points: - Managers are expected to create an atmosphere where staff feel free to use existing channels without fear of reprisal. Channels include managers, ASPMs, SPMs, Department Directors, HRD, the Ombudsperson, the Ethics Advisor, the Integrity Hotline, and the formal dispute resolution system (Grievance Committee and Administrative Tribunal). - Staff are expected to cooperate with the Fund’s processes and participate as witnesses when requested. - Staff are strongly encouraged to make reports in good faith of suspected misconduct or unethical behavior. Failure to report suspected misconduct is not itself a separate act of misconduct. - Managers have a duty to act upon, resolve, and/or report ethical concerns that come to their attention. - Malicious and unsubstantiated allegations of misconduct are viewed as separate acts of misconduct. ### Promotion and appointment processes (Staff Bulletin No. 03/27; December 19, 2003 and related provisions) - Review Committee (RC) procedures: - Departments provide the RC with the three most qualified candidates in ranked order with detailed explanations for rankings. - Candidates are not informed of standing prior to the RC meeting, except those who do not meet minimum requirements and are not interviewed. - The RC reviews shortlisted candidates and will call the department’s Senior Personnel Manager (SPM) if questions arise about relative strength of candidates. - Joint agreement between the RC and the department on a final decision will be actively sought; the RC advises management and seeks its approval. - These requirements apply to positions advertised from September 2, 2003. - Criteria governing promotion from Grade B1 to Grade B2 for economists in SCS departments: - Division Chief/Advisor positions in SCS departments requiring economist skills will be screened by HRD to determine whether job content is commensurate with the proposed grade and an economist background is required. - Staff from the RC List selected for such positions may be promoted to Grade B2 based on criteria applicable to economist staff. Those not on the RC List, including specialist economists, will be governed by SCS criteria for promotion from Grade B1 to B2. - All Division Chief/Advisor positions in SCS departments requiring economist skills will be advertised; vacancy announcements will indicate skills and experience required and, if applicable, note criteria for promotion to Grade B2. - If an economist from the RC List is selected, the position during incumbency will be considered an economist position and not included in the Grades B1–B3 SCS staff count or the ceiling. - When a position becomes vacant and job content/skills requirements change, the vacancy announcement will reflect new requirements. - Promotion process highlights: - To be considered for promotion to managerial positions at Grades A14–B4, candidates must either apply for a vacant position or be promoted within the grade band of their current position. - All vacant positions starting at Deputy Division Chief/Assistant to the Director at Grade A14 up to Grade B4 must be advertised in the Career Opportunities (CO), subject to limited management discretion for certain Director positions at Grades B3 and B4. - Vacancies should be advertised as soon as they fall vacant unless HRD approval is obtained to keep a position open for up to six months. - Vacancies are advertised in the CO on the Fund Intranet; managerial positions at Grades A14–B4 (with exceptions noted) must first be advertised internally before considering external candidates. - Division Chief/Advisor positions that span several grades (Grades B1–B3 for economist stream; B1–B2 in SCSs) may have promotions that do not require advertising because they do not involve vacancies. - All candidates for promotion or appointment to managerial positions at Grades A14–B4 must be nominated by their department and reviewed by either the RC (for Grades A14–B2) or the SRC (for Grades B3–B4). Committees advise the Managing Director, who makes the final decision. - HRD screens candidates to ensure eligibility and provides summary data to the RC, SRC, and management. - RC composition and remit: - The RC consists of the Director of HRD (Chairperson) and eight members at Grade B4 appointed by the Managing Director. Members serve three-year terms and serve in individual capacities; HRD serves as the secretariat. - The RC reviews and advises the Managing Director on: - economist candidates for inclusion on the RC List; - candidates for vacancies in specialist economist positions at Grade B1 in functional and SCS departments, and candidates for vacant Grade B1 positions in SCS departments; - all external appointments at Grades B1–B2; - all promotions from Grade B1 to B2; - internal or external candidates for promotion or appointment to managerial positions at Grades A14/A15 in all career streams; - all Resident Representative appointments, with attention to promotions from Grade A14 to A15; - all conversions of fixed-term appointees to managerial positions at Grades A14/A15 and Grades B1–B2 in all career streams. - RC List: - Composed of Grade A15 “fungible” economist staff considered ready for advancement to Division Chief and Advisor positions Fundwide. - Inclusion on the RC List is a precondition for a Grade A15 economist to apply for a vacant B-level economist Division Chief or advisor position advertised in the CO. *Source: the Fund.* ### 14. The RC reviews departmental proposals for promotions, ### j2015-3 - 14. The RC reviews departmental proposals for promotions ### RC role and scope - The Review Committee (RC) reviews departmental proposals for promotions, appointments, and conversions at Grade A15 (and any Assistant to the Director position filled at Grade A14), Grade B1 (when positions are filled by specialist candidates not on the RC List), and Grade B2 and makes recommendations to management. - The RC reviews and endorses promotions/appointments/conversions at Grades A14 (Section Chief, Deputy Division Chief or Assistant to the Director) to B2 (including Resident Representatives), candidates nominated for the RC List, and all Resident Representative positions. - The RC meets to consider candidates for the May and November promotion cycles and on an ad hoc basis during the rest of the year. ### Departmental shortlists and RC review requirements - For all promotions to Deputy Division Chief, Assistant to Director, and Grade B1/B2 positions that are not limited to candidates from the RC List, departments must provide the RC with a list of the three most qualified candidates in rank order, together with detailed explanations for the rankings. - The RC reviews the background of all shortlisted candidates and comes to a view on the department’s proposal for the position. - The RC evaluates candidates’ experience in: (i) analytical and research work; (ii) guiding and influencing policy; (iii) leading missions and project teams; (iv) managing work programs; and (v) guiding staff. The RC also evaluates the relevant competencies. ### Documentation and inquiries used by the RC - The RC reviews: biographical information, last two Annual Performance Reports (APRs), TIG, Management Development Center (MDC) report, Individual Development Plans (IDP) for those proposed for the RC List or for Grade B1 promotions, Subordinate Assessment of Managers (SAM), if applicable, and the list of shortlisted and all other applicants. - Each RC member conducts independent inquiries about candidates through discussions with the candidate, current and former supervisors, subordinates, and peers. The RC member undertaking the in-depth review completes a worksheet identifying skills, experience, and gaps and shares it with other RC members. ### A15, B1, and B2 specific rules and constraints - The number of A15 positions in each economic department normally cannot exceed the number of divisions plus one. Additional Grade A15 positions may be approved by HRD under special circumstances; the need for additional positions is reviewed when these positions become vacant again. - In economist vacancies at Grade B1 (excluding specialist positions), eligibility of Grade A15 staff to apply is limited to those on the RC List. For specialist positions, qualified staff members, including those not on the RC List, may apply; in such cases departments must follow the three-candidate shortlist procedure. - Economists proposed for specialist positions do not need to be on the RC List but are assessed using the same criteria applied to other economists with the exception of the fungibility requirement. - Grade B1 is primarily a “pass-through” grade for economists in B-level economist positions. Promotion to Grade B2 involves upgrading the incumbent position and does not require advertising a vacant position. - Candidates proposed for Grade B2 must have performed their functions at a fully satisfactory level. RC oversight focuses on ensuring managerial skills are strong; this would normally require a SAM, or, if a SAM is not possible, other evidence of strong managerial performance. ### Specialized career streams (SCS) promotion and ceilings - The RC reviews departmental proposals for promotions and appointments for managerial positions such as Deputy Division Chief and Assistant to the Director positions at Grade A14, and promotions to and appointments at Grades A15–B2. - Ceilings for SCS positions: - The number of Grade A14 positions normally cannot exceed the number of divisions plus one, except with the approval of HRD. - The number of A15 positions normally cannot exceed half the number of divisions. - The number of positions in SCSs graded at B2 is subject to a ceiling of 50 percent of all Grade B1–B3 SCS positions in SCS departments. - Specific criteria for promotion to each grade are covered in Table 2. Management has approved specific criteria for promotions to Grade B2. ### Vacancy List System and advertising requirements - All vacant positions at Grades A15–B4 (as well as Grade A14 Deputy Division Chief/Assistant to the Director positions) must be advertised in the CO. Exceptions are limited to Grade B4 vacancies, which need not be advertised when: - Management has a firm view about filling a specific Grade B4 vacancy with an external recruit; or - Management elects to fill a Grade B4 vacancy through the lateral transfer of a staff member already at the Grade B4 level. - HRD reviews all applications and forwards to the department advertising the vacancy the names of those staff members who meet the eligibility requirements, along with: - Updated biographical information; and - Copies of the last two Annual Performance Reports (APRs). - If HRD does not forward an application, HRD informs the applicant of the reason. - Departments are encouraged to interview applicants forwarded by HRD; if the number of qualified applicants exceeds five, the department may limit interviews to five candidates. - Departments may contact other staff who have not applied if no suitable candidate is found among applicants, and may pursue external searches concurrently. ### Promotions that are reclassifications - Virtually all promotions from Grades B1 to B2 and Grades B2 to B3 involve reclassification of an incumbent’s position to a higher grade and promotion of the incumbent; since reclassifications do not normally involve vacancies, they are not advertised. ### RC List: purpose, preparation, eligibility, and duration - The RC List identifies Grade A15 economist staff who are ready for advancement to Division Chief and Advisor positions. Departments may fill economist vacancies by choosing someone from the RC List who has applied. - Candidates for Grade B1 promotions in SCS and for specialist economist positions in functional departments are not required to be on the List. - The RC determines which candidates are ready to assume a B-level position immediately and which need further testing; when more qualified candidates exist than can be added, the RC ranks them and decides who is added. - Staff on the RC List: - Are eligible to apply for vacant positions at Grades B1/B2 in any department in the Fund. - To be eligible for promotion within the current department, staff must meet the mobility requirement. - Length of time on the RC List: - Until promoted, but for a maximum of three consecutive years. Candidates are dropped from the List if not promoted by the end of the third year. - The name of the candidate can be submitted for re-instatement on the RC List. The resubmission interval is normally a minimum of one year. Re-inclusion on the List is not automatic. ### Feedback to unsuccessful internal candidates - The RC and SRC provide feedback to unsuccessful internal candidates. Discussions and opinions among RC and SRC members are kept strictly confidential. - Each Committee agrees on summary information made available to candidates who have been proposed for consideration but not endorsed. This includes reasons why the candidate was not endorsed, prospects for future consideration, and steps to strengthen future candidacy. - The information is conveyed to the department head or SPM in the staff member’s department, who is asked to provide feedback to the individual. Representatives of HRD may also participate in providing feedback. ### RC process outputs and management actions - Based on RC advice, management makes the final decision and communicates its decision to HRD. - Management issues an N-12 notification to inform the Board of promotions to or appointments at the B-level. ### Promotion policy reform (Memorandum from Deputy Managing Director, July 1, 2011) - Key elements announced on July 1, 2011: 1. Replace TIG with promotion criteria supported by competency frameworks; three broad criteria: performance; experience; and readiness. Departments select A-level promotion candidates in departmental reviews with guidance and oversight from HRD. 2. Introduce promotion budgets as ceilings on the number of A-level growth promotions each department can accommodate; ceilings initially based on departmental staffing profiles, with subceilings for economists, SCS professional staff, and SCS support staff. 3. Unify processes for promotion to B2 across career streams. Candidates for promotion to B2 will continue to be reviewed with focus on managerial performance and competencies; they will have spent at least 18 months at B1 prior to promotion to ensure at least one full APR assessment (May to April) prior to candidacy. As a transitional measure for the upcoming November 2011 round, the TIG for economist promotions to B2 will be maintained at 12 months. ### Tribunal case considerations excerpted from the material - The Application of Ms. “GG” raised issues including whether Applicant was subject to a pattern of retaliation, harassment (including sexual harassment), gender discrimination, or a hostile work environment; challenges to non-selection for B-level vacancies in 2009, 2010, and 2011; APR decisions for FY2009 and FY2010; whether the Fund abused its discretion in adopting the B1/B2 promotion policy of July 2011 and applying it to Applicant; and whether elements of administrative review and Grievance Committee processes constituted failures of due process. - The Tribunal analyzes admissibility and merits of hostile work environment and related claims, referencing the Fund’s Discrimination Policy and Harassment Policy definitions and prior Tribunal jurisprudence. *Source: International Monetary Fund.* ### 185. The Tribunal subsequently observed that in Mr. “F” it had taken “cognizance of a pattern ### j2015-3 - 185. The Tribunal subsequently observed that in Mr. “F” it had taken “cognizance of a pattern ### Admissibility of a "pattern" claim and related jurisprudence - The Tribunal has held that acts not challenged as separate “administrative acts” (Statute, Article II) may be invoked to support a claim that an applicant was the object of a pattern of conduct prohibited by the Fund’s policies barring workplace discrimination and/or harassment (paras. 186–187). - A claim based on a pattern is admissible if a later act in the pattern has been timely challenged as part of a good faith assertion that it forms a culminating act in the pattern of allegedly prohibited conduct (para. 186). - Reasoning supporting this approach: - A “pattern,” by its nature, takes time to accrue (para. 186). - Other international administrative tribunals have taken a similar approach, treating the date of the last event in an accumulation as the relevant date for time limits (para. 187; citing Ms. H. L. [WIPO], ILOAT Judgment No. 3347 (2014), para. 8, and Q v. Commission of the European Communities (F-52/05), EUCST Judgment (9 December 2008), para. B.2.). - Precedent: - Mr. “F”: Tribunal accepted allegation that abolition of position was culmination of history of discrimination and the applicant had requested administrative review of the abolition decision and surrounding issues (para. 188; Mr. “F”, para. 39). - Mr. “O”: Tribunal held that separation from service challenged as a culminating act of racial discrimination was not time-barred and that the Tribunal could consider whether evidence sustained a claim of discriminatory treatment in the applicant’s career; the discrimination claim was later denied on the merits (para. 185–186; Mr. “O”, paras. 73–74, paras. 98–100). - Responses to opposing arguments: - The Respondent’s contention that only the FY2010 APR was properly before the Tribunal and thus harassment allegations should be disregarded is criticized as inverting the logic of admissibility for pattern claims (para. 186, n.29). - The Grievance Committee’s position that jurisdiction over a pattern of harassment requires at least one action inside the jurisdictional period is reported and contrasted with ILOAT clarification that conflating merits with receivability can lead to erroneous time-bar bar findings (para. 186, n.29; citing Ms. H. L. [WIPO], ILOAT Judgment No. 3347 (2014), para. 9). ### Applicant’s procedural posture and assertion of pattern - Applicant asserted, throughout channels of review, a pattern of unfair treatment dating back to 2007 and filed a timely challenge to her FY2010 APR (para. 189). - Applicant alleged that the FY2010 APR decision “reflects discrimination that had its causal genesis from 2007” (Appeal to Grievance Committee: Response to Administrative Review, p. 1) and was part of a “four-year pattern of abuse of discretion by [the Department Director] and a hostile work environment” (para. 189). - Because Applicant consistently raised the pattern allegation during administrative review, the Tribunal concluded Applicant raised an admissible challenge to an alleged pattern of unfair treatment (para. 189). ### Governing Fund policies and key legal propositions - Harassment Policy: - Defines “harassment” as “behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment.” (Harassment Policy, para. 3) (para. 192). - Notes harassment can include “intimidation or sexual harassment.” (Harassment Policy, para. 3) (para. 192). - Supervisors: “The Fund strives for an environment which is free of harassment, and supervisors are expected to support this objective, including stopping harassment in the areas under their supervision.” (Harassment Policy, para. 18) (para. 192). - “Mildly offensive comments or behaviors can rise to the level of harassment if they are repeated or become pervasive.” (Harassment Policy, para. 10) (para. 198). - Discrimination Policy: - Prohibits conduct that has an “adverse impact on the individual’s employment, successful job performance, career opportunities, compensation, or other terms and conditions of employment.” (Discrimination Policy, Section III) (para. 193). - Recognizes that “failure to provide fair and impartial treatment, even if through inaction, can have harmful effects on an employee’s career.” (Discrimination Policy, Section III) (para. 193). - Emphasizes managerial responsibility to “create and maintain a supportive and encouraging work environment for all employees and take all reasonable actions necessary to prevent and address undesirable or inappropriate behavior.” (Discrimination Policy, Section I) (para. 193). - Retaliation policy (GAO No. 33 (Conduct of Staff Members) (May 18, 2011), Annex 6: Retaliation): - Encourages use of channels for reporting suspected misconduct and warns that retaliation for using these channels is itself misconduct. - States “[m]anagers are expected to create an atmosphere where staff will feel free to use existing channels for workplace conflict resolution without fear of reprisal.” (para. 194). - Tribunal emphasis: - Unfair treatment may take the form of inaction as well as action; supervisors carry special responsibility; staff who raise complaints are protected from reprisal (para. 195). ### Applicant’s allegations summarized (pattern of retaliation, harassment, and gender discrimination) - Applicant’s core allegations (para. 196 and following): - An environment in the Department tolerated sexual harassment of women by male senior officials; the Department Director retaliated against Applicant for raising incidents of sexual harassment and racist comments by downgrading APR and MAR ratings in 2007 and 2008 (para. 196, first bullet). - Applicant’s FY2009 and FY2010 APR decisions were improperly motivated and part of the pattern (para. 196, second bullet). - In 2009, the Department Director advised Applicant to use “charm, humor and personal appeal to him,” words Applicant considered sexual harassment; Ombudsperson and HRD Director took no corrective actions (para. 196, third bullet). - Career sabotage allegations related to Department Director’s unusual participation at the 2009 RC meeting and providing reasons why Applicant’s nomination should not be approved; a male colleague was advanced to the B List in 2009 while Applicant was not (para. 196, fourth bullet). - Alleged manipulation of the 2009 vacancy selection process to favor another woman; eligibility initially limited to B List; HRD approval to open to A15 not on B List shortly before vacancy closed; Selection Panel viewed Applicant as superior after interview but other candidate selected based on alleged improper, irrelevant, and pretextual factors; RC representative on Panel disagreed; RC refused to approve decision holding only B List staff should have been considered; vacancy re-advertised in 2010 and “selectee” placed “in charge” in interim (para. 196, fifth bullet and continuation). - Department resisted re-advertisement; email in early 2010 quoted SPM: “Do we really have to advertise the . . . position again? [The Department Director] is talking about calling [the HRD Director] to argue we shouldn’t.” (para. 196, sixth bullet). - In early 2010, RC advanced both Applicant and the “selectee” to the B List; Department initially did not plan to renominate Applicant for B List in 2010; intervention by HRD Director followed confidential emails from three RC members questioning fairness; Department renominated Applicant for B List consideration in 2010 (para. 196, seventh bullet). - When vacancy re-advertised after 2010 B List decisions, Applicant did not apply because she felt she could not continue under Department Director and he had indicated the 2009 “selectee” would be chosen; that staff member was selected (para. 196, eighth bullet). - Applicant transferred laterally to another Department at same grade fearing retaliation, initiated review only after transfer, and later promoted to a B1 position in a third Department (para. 196, ninth bullet). - Applicant was subjected to “repeated and pervasive use of offensive comments and behavior” undermining her professional standing, including being cut off in Departmental meeting and scheduling another meeting when she could not attend (para. 196, tenth bullet). - Respondent’s position (para. 197): - The Fund asserts Applicant was not subjected to harassment or a hostile work environment; characterizes allegations as “petty complaint[s]” and “hypersensitivity.” - Fund contends that a “hostile work environment” requires offending behavior to be “either severe or pervasive . . . and result in unfair treatment,” which Applicant has not shown. - Fund likens the facts to a supervisor-subordinate “personality clash” in Mr. “DD”, IMFAT Judgment No. 2007-8, para. 90, where harassment claim was denied. ### Tribunal’s analysis of the merits (initial framing) - The Discrimination Policy acknowledges that discrimination may manifest as a “pattern” and be less obvious than a “single decision”; inaction can produce harmful career effects (Discrimination Policy, Section III) (para. 198). - The Harassment Policy explicitly states that “Mildly offensive comments or behaviors can rise to the level of harassment if they are repeated or become pervasive.” (Harassment Policy, para. 10) (para. 198). *Source: International Monetary Fund Administrative Tribunal (IMFAT) judgment excerpts.* ### 199. Accordingly, in determining whether Applicant has demonstrated that she has been ### j2015-3 - 199. Accordingly, in determining whether Applicant has demonstrated that she has been ### Legal standard and approach to "pattern" and "hostile work environment" - The Tribunal distinguishes assessing a “pattern” of impermissible conduct from reviewing a single “administrative act” (e.g., a non-selection decision). The Tribunal must examine individual incidents not in isolation but to discern whether Applicant has established a pattern whose “cumulative effect” is to “deprive [her] of [the] fair and impartial treatment” owed as a member of the staff of the Fund in such a manner as to constitute a hostile work environment. (para. 199) - The Fund’s internal law does not define “hostile work environment” explicitly. The Policy on Harassment defines “Harassment” as “behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment.” (Harassment Policy, para. 1.) The Fund’s Code of Conduct, under “Courtesy and respect,” requires staff to avoid behavior that “may nonetheless create an atmosphere of hostility or intimidation.” (Fund’s Code of Conduct, para. 14.) (para. 200) ### Precedent: Mr. “F” and interpretation of harassment/hostile work environment - In Mr. “F”, the Tribunal asked whether the applicant had shown a “pattern of words, behaviors, action or inaction (such as the failure to take appropriate action in response to a complaint of discrimination), the cumulative effect of which is to deprive the individual of fair and impartial treatment.” The Tribunal there concluded the applicant had been subjected to a hostile work environment. (para. 201) - The Tribunal treated “harassment” and “hostile work environment” largely interchangeably consistent with the Fund’s Harassment Policy, noting discrimination and harassment are closely related under Fund law though the prohibition on harassment has broader focus. Mr. “F” found an atmosphere of religious animosity tantamount to harassment that adversely affected work performance and perhaps health. Subsequent jurisprudence distinguishes harassment linked to discriminatory animus from harassment without discriminatory animus. (paras. 203–203 note) ### Factual context: earlier sexual harassment and Applicant’s reporting role - Applicant’s claim arises against the backdrop of her prior report (on behalf of subordinate staff members) of sexual harassment in her work unit, which contributed to disciplinary action against a senior Department official. These events establish that sexual harassment was a factor in the work unit as far back as 2007; other female staff later raised similar allegations. (para. 205) - Department Director’s Grievance Committee testimony recounted Applicant accused a senior person of being sexist, racist, and biased; management took action that “impended on that individual’s APR, discussion, and salary adjustment.” The Director later described the conduct as “jokes that probably should not have been made,” characterizing them as “a poor attempt at humor rather than any deep bias or prejudice,” while acknowledging action was appropriate. (9/15/11 Tr. 65-66) (para. 206) - It is undisputed that disciplinary sanctions were imposed on that supervisor; Applicant contends the sanctions did not stop the misconduct because the Department Director did not regard the conduct as problematic and permitted it to persist. (7/9/12 Tr. 50, 54.) (para. 207) - The Tribunal views the 2007 events as providing context and possible motive for the alleged subsequent pattern of unfair treatment after Applicant sought to ensure conformity with the Fund’s ethical standards. (para. 208) ### Allegations the Tribunal will examine for a pattern constituting a hostile work environment - The Tribunal will examine whether Applicant has substantiated a pattern by reviewing: - (i) whether the Department Director engaged in conduct at the February 2009 RC meeting that disfavored Applicant’s advancement to the B List; - (ii) whether the process filling a B-level vacancy in 2009 (not filled until re-advertised in 2010) evidenced unfair treatment; and - (iii) whether the Department Director made sexually harassing comments to Applicant in July 2009 when she raised APR and career concerns. (para. 204) ### Tribunal findings on the February 2009 RC meeting (B List) - Dispute of facts: - Three RC members reported to the HRD Director that due diligence showed Applicant was “very competitive” for the B List but that the Department Director had come to the meeting “(in itself unusual, as the normal practice is for the SPM to come to the RC meeting), and basically gave us a number of reasons why she should NOT be put on the list.” (Email from three RC members to HRD Director, November 24, 2009.) (para. 210) - Department Director testified he was “sure I said a lot of supportive things,” that he “never gild the lily” and that he “didn’t say that she was perfect,” while conceding his attendance was unusual and he could not recall why he attended. (9/15/11 Tr. 60-63) (para. 211) - Outcome of RC meeting: - Applicant was not advanced to the B List, with feedback stating she “[s]how[ed] potential but need[ed] further seasoning/development/testing,” including to “expand managerial (including supervision of economists) and mission leadership experience” and to “strengthen diplomacy with supervisors.” (Review Committee List Feedback Summary, Committee Date: February 24-25, 2009.) (para. 212) - Contradiction with APRs: - Applicant’s FY2008 APR described her as “an outstanding performer in a number of diverse areas,” “a very successful manager who is highly popular with her staff and invariably receives high evaluations.” (Applicant’s FY2008 APR.) (para. 213) - Applicant’s FY2009 APR (rating period May 1, 2008–April 30, 2009) said she was “ready to assume higher levels of management responsibility.” The SPM confirmed she is a “very strong economist and an excellent manager. I agree that [Applicant] is ready to take on a B-level position.” (Applicant’s FY2009 APR.) (para. 213) - Credibility assessment and conclusion: - The Tribunal finds the documentary evidence of the three RC members to be a reliable account and is persuaded it is more likely than not that the Department Director’s conduct at the February 2009 RC meeting served to impede Applicant’s advancement to the B List. (para. 215) - The Department Director’s vague testimony (statements such as “I’m sure I said a lot of supportive things”) lacks detail and cannot be accorded substantial weight. (paras. 216–217) - The Tribunal concludes the Department Director’s conduct at the 2009 RC meeting was a significant factor leading to the decision not to advance Applicant to the B List, a critically adverse decision to Applicant’s career progression. Three RC members perceived it as unfair and prejudicial; it ran counter to due diligence and the Department’s assessment of Applicant’s readiness. When considered cumulatively with other record words and conduct, these actions form part of a pattern of unfair treatment constituting a hostile work environment. (paras. 215, 218) ### Tribunal review of the B-level vacancy selection process (2009 vacancy re-advertised 2010) - Applicant alleges manipulation of the 2009 vacancy process to disfavor her in favor of another candidate supported by the Department Director. (para. 219) - Admissibility scope: - The Tribunal holds Applicant’s challenge to non-selection for the 2009 vacancy is not admissible as a challenge to a separate “administrative act.” The Tribunal limits its consideration of the vacancy process to whether it forms part of a pattern constituting a hostile work environment. (para. 220) - Procedural facts: - Initially neither Applicant nor the purportedly favored candidate were eligible because neither was on the B List. Shortly before the vacancy closed, HRD approved opening recruitment to A15 staff not on the B List; Applicant applied immediately—a fact noted the next day by the SPM to the Department Director. (para. 221) - Because non-B List candidates were being considered, an RC member joined the Selection Panel—the same RC member who had performed due diligence on Applicant during her B-List nomination. (para. 222) - Four candidates were interviewed; the Selection Panel concluded all four “. . . had strong records and would likely be successful in the position.” The Selection Memorandum stated that “Based solely on the interviews, the panel ranked the candidates in order as [Applicant], [the selectee], [the other two candidates]. However, in examining the two top candidates and taking into consideration factors beyond the interviews, most of the panel ranked [the selectee] ahead of [Applicant].” The Department recommended selection of the other candidate. (para. 223) - Evidence of perceived unfairness: - The RC member on the Selection Panel emailed a small group of senior female economists: “Of the 4 candidates we interviewed, [Applicant] was heads and shoulders above the rest—this was acknowledged by the panel but they chose their favorite candidate in the write up. I basically told them that I would not go along with their proposal—was reflected in the write up (there are records of all this).” (Email from RC member to five senior women economists, November 24, 2009.) (para. 224) *International Monetary Fund Administrative Tribunal judgment excerpt, paras. 199–224.* ### 225. The Tribunal requested from the Fund “any opinion dissenting from the Selection ### Tribunal findings on Selection Memorandum, B‑List process, and alleged harassment (paragraphs 225–254) ### Procedural record regarding the Selection Memorandum - The Tribunal requested from the Fund “any opinion dissenting from the Selection Memorandum.” The Fund responded that “[t]here were no such dissenting opinions submitted to HRD.” (para. 225) - Documentary evidence shows the RC member on the Selection Panel was provided the opportunity to comment on a draft of the Selection Memorandum and responded: “It’s fine. Please see two small edits.” (para. 225) - The two edits proposed by the RC member were: - add the phrase “in top academic journals” in the discussion of Applicant’s publications; and - change the word “good” to “very strong” in describing Applicant’s management and leadership skills. (para. 225) - Those edits were incorporated into the final Selection Memorandum. (para. 225) ### Evidentiary inferences about RC member views and Selection Panel weightings - The Tribunal observed that the RC member’s response that the memorandum was “fine” did not necessarily indicate support for the recommendation; the proposed edits “support the view that the Selection Panel did not give Applicant’s strengths the weight that the RC member believed they deserved.” (para. 226) ### Documentation and comparative evaluations - The Tribunal requested “any documentation underlying the Selection Memorandum . . . , including any grids showing the respective ratings of each of the candidates on the various competencies for the position (with names redacted except for those of Applicant and the selectee).” (para. 227) - The Fund concluded that “no such documents currently exist, if they ever existed,” after review and consultation with the former SPM of Applicant’s Department and the Secretary of the RC; the former SPM “apprised us that there was no formal comparative table of the candidates.” (para. 227) - Applicant contends that the lack of formal comparative documentation demonstrates lack of proper consideration and supports her contention that the decision not to select her “stems from the improper discriminatory and retaliatory motives of the [Department] Director . . . and his personal animosity toward [her].” (para. 228) ### Relevance of language and regional origin to selection - Applicant alleges that a principal reason given for the selection of the other staff member—namely, that she was a native of the region and spoke a language of the region—was irrelevant, improper, and pretextual. (para. 229) - The RC member stated: “The only reason I was told as to why [Applicant] did not cut it is because she is not from the region . . . .” (Email from RC member to five senior women economists, November 24, 2009.) (para. 229) - The Department Director explained at Grievance Committee testimony: “It was advantageous to be connected in [the region] and advantageous to speak some [language of the region].” (9/15/11 Tr. 241-242.) (para. 229) - The Fund has not disputed that language skills had not been part of the stated qualifications for the position. (para. 229) ### Cancellation of 2009 selection and subsequent actions (B List issues) - After the selection process was completed, the decision was “not implemented” and the requisition for the vacancy was cancelled. The SPM testified that this was because the RC advised HRD that Grade A15 candidates who were not on the B List should not have been considered; both Applicant and the “selectee” were disqualified. (9/6/11 Tr. 356.) (para. 230) - The RC member characterized the outcome: “[I]n the end, the process turned out to be invalid because the person they were rooting for had not gone through the B list, so they withdrew the nomination.” (Email from RC member to five senior women economists, November 24, 2009.) (para. 230) - Following non‑implementation, the “selectee” was placed in the position on an “in charge” basis. Applicant asserts the Department Director told her the “selectee” would be nominated for B List consideration at the January 2010 RC meeting whereas Applicant would not be re‑nominated; and that the Department Director advised she “. . . could move to another department and get them to support [her] for the Review Committee list.” (7/9/12 Tr. 139-140; 7/10/12 Tr. 130.) (para. 231) - The Fund does not dispute that the Department Director had told Applicant she would not be renominated for the B List. The Tribunal finds that the Department Director’s refusal to renominate Applicant for inclusion on the B List “constitutes part of the same hostile pattern of behavior” that led him to speak against her inclusion on the B List at the RC meeting in February 2009. (para. 232) ### Renomination, 2010 outcomes, and Department Director conduct - After intervention by three RC members and the HRD Director, the Department did renominate Applicant for B List consideration in January 2010. Both Applicant and the other staff member were advanced to the B List at the 2010 RC meeting. (para. 233) - The Tribunal interprets this outcome to mean that, “in the absence of the intervention by the three RC members and the HRD Director, the Department Director would once again have impeded Applicant’s advancement to the B List,” and views that as “further evidence of the hostile work environment” caused by the Department Director. (para. 233) - A new requisition was issued after the 2010 B‑List decisions; the Department Director resisted re‑advertisement. The SPM asked an HRD official by email: “Do we really have to advertise the . . . position again? [The Department Director] is talking about calling [the HRD Director] to argue we shouldn’t.” (para. 234) - Applicant did not apply for the vacancy when posted in 2010 because, after the Department Director’s statements in July 2009, she felt she “could not see putting myself in a position of being his direct subordinate” and sought to leave the Department even if by a lateral move at A‑15; she transferred to an A‑15 position in another Department in 2010. (7/10/12 Tr. 66.) As a result of the 2010 process, the same staff member was appointed to the position. (para. 235) - The Tribunal characterizes aspects of the 2009–2010 filling of the B‑level vacancy as troubling: vacillation by HRD on eligibility of non‑B List Grade A15 candidates; absence of any “formal comparative table of the candidates”; and preference for the “selectee” on the basis of language skills not included in stated qualifications. Nonetheless, the Tribunal concludes Applicant has not established that these procedural flaws are part of the pattern of unfair treatment directed at her. (para. 236) - The Tribunal concludes that the Department Director’s informing Applicant she would not be renominated to the B List after cancellation of the 2009 process “provides further evidence of the pattern of adverse conduct by her Department Director” and, cumulatively with other conduct, “form part of a pattern of unfair treatment constituting a hostile work environment.” (para. 237) ### Alleged sexually harassing comments in July 2009 and related evidence - Applicant states that in July 2009 she raised with the Department Director concerns about her APR ratings and career advancement, including a publication in a leading professional journal; she testified the Department Director “. . . reacted instantly with anger, saying ‘[an article in that journal] doesn’t mean beans.’” Applicant asked how to improve her ratings and he said she could use “charm, humor and personal appeal to him.” (7/9/12 Tr. 141.) Applicant contends these remarks constitute “sexual harassment.” (para. 238) - A former supervisor who mentored Applicant testified to Applicant’s contemporaneous report that the Department Director had told her to be more “charming,” and expressed that she found that remark “quite outrageous.” (7/9/12 Tr. 160-161.) A senior woman economist reacted “aghast” at the comment: ‘“charm, humor, and personal appeal’ indeed!!” (Email exchange of November 23, 2009.) (para. 239) - Applicant reports the Department Director repeated suggestions she be “charming,” “use humor,” “tell jokes,” and use “personal appeal,” which she characterizes as “flirtatious behaviors, and offensive . . . reflect[ing] discrimination and harassment.” (para. 240) - Applicant recounted a post‑RC February 2009 meeting in which the Department Director allegedly launched “a personality diatribe,” reiterated that she needed to be more “charming” and that she could “tell jokes” as a way of being more charming; he allegedly, “in a flirtatious demeanor,” said she looked younger than her age and had plenty of time for promotions. (7/9/12 Tr. 96–98.) (para. 241) - The Department Director did not squarely deny the alleged remarks; he explained his interchanges as advising Applicant to use “more charm than aggression” in advocacy. (9/15/11 Tr. 71.) (para. 242–243) ### Tribunal assessment of credibility, reasonableness, and context - There were apparently no witnesses to the July 2009 exchange. The Tribunal found Applicant’s account persuasive, supported by contemporaneous and repeated reports of the phrase she should use “charm, humor and personal appeal to him.” The Department Director did not deny using the word “charm” or “charming” and confirmed advising that it was “[a] case of using more charm than aggression.” (9/15/11 Tr. 71.) (para. 245) - The Fund’s Harassment Policy states: “[T]he definition of harassment concerns not only a person’s intent in engaging in certain conduct, but also the effect of the conduct on others. Therefore, if a specific action by one person is reasonably perceived as offensive or intimidating by another, that action might be seen as harassment, whether intended or not.” (Harassment Policy, para. 9.) The Tribunal emphasized that the effect must meet a test of “reasonableness.” (para. 247–248) - Reasonableness is fact‑specific and judged in context, including consideration of prior relations and workplace history. The Tribunal noted the undisputed history of sexual harassment in Applicant’s work unit and Applicant’s role in reporting earlier misconduct leading to discipline of a former supervisor. Applicant contends prohibited conduct continued and that the Department Director’s tolerance was responsible. (paras. 249, 253) - Applicant testified she found the “charm” comment particularly significant because she had observed the Department Director use “charming” to describe another woman with whom he had an allegedly inappropriate relationship and who had told Applicant he asked her out. Applicant emphasized the July 2009 comments occurred “against the background of his harassment of other women in [the Department].” (7/9/12 Tr. 31–35; 34, 142.) (paras. 251–252) - The Tribunal concluded Applicant found the comments inappropriate and demeaning and that she did not regard them as serious career advice. (para. 250) - Ultimately, the Tribunal framed the inquiry as whether Applicant “reasonably perceived” the Department Director’s comments as “offensive or intimidating” under the Harassment Policy; it acknowledged a potential difference in the parties’ interpretations of “charm” but evaluated the claim in the context of prior history and Applicant’s perceptions. (paras. 246–249, 254) *Tribunal findings (paragraphs 225–254).* ### 255. Applicant contends that the Department Director’s comments to her constituted “sexual ### j2015-3 - 255. Applicant contends that the Department Director’s comments to her constituted “sexual ### Definition of sexual harassment and Tribunal framing - Harassment Policy (para. 5) defines “sexual harassment” as “any behavior of a sexual nature that is unwelcome, offensive, or that creates a hostile or intimidating work environment.” - Harassment Policy examples include “sexual assault, unsolicited requests for sexual favors, requests for sexual favors linked to implied threats or promises about career prospects, unwanted physical contact, visual displays of degrading sexual images, sexually suggestive conduct, or offensive remarks of a sexual nature.” - Harassment Policy emphasizes that “The most obvious form of sexual harassment in the workplace is a direct or implicit request for, or offer to provide, sexual favors in exchange for favorable career treatment.” (paras. 6-7) ### Tribunal’s assessment of the Department Director’s remarks - The Tribunal is “not convinced” that the Department Director’s remarks constituted “sexual harassment” as defined in the Harassment Policy; the remarks are “subject to multiple interpretations” and are “not necessarily ‘sexual’ in content.” (Harassment Policy, para. 5.) - The Tribunal finds the remarks reveal an unwillingness by the Department Director to engage genuinely with Applicant when she sought support after rejection for the B List in February 2009 and her FY2009 APR decision. - The Department Director’s explanation in Grievance Committee testimony: “You’ve got to persuade people, coax them into your position rather than just trying to beat them into it. . . . It’s a case of using more charm than aggression.” (9/15/11 Tr. 71.) - Even accepting that explanation, the Tribunal considers the comments to evidence a gendered approach to feedback—faulting Applicant for “bludgeoning people,” using “aggression” instead of “charm,” and urging her to “coax” others. ### Gender stereotyping, perceptions, and corroborating reactions - The Tribunal concludes Applicant “reasonably perceived” the remarks as taking impermissible account of her gender and as failing to address seriously her career-development concerns. - The Tribunal cites ground to conclude that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.” (Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) quoted) - Reactions of similarly situated staff corroborate gendered meaning: - Women economists to whom Applicant relayed the comments were “aghast” (Email exchange of November 23, 2009), describing the comments “outrageous” and “incredible.” (7/9/12 Tr. 160-161.) - Those colleagues perceived Applicant’s case as a “concrete example” of “women plateauing unfairly at A-15.” (Email exchange of November 23, 2009.) ### Contextual evidence on performance feedback and prior assessments - Fund policies: “. . . giving biased feedback depending on an individual’s gender, race, or other irrelevant factors can be a form of discrimination.” (HR Web: Discrimination Appendix 3 - Distinguishing Between Discrimination and Nondiscriminatory Conduct in the Fund’s Working Environment.) - “Feedback should . . . be accompanied by constructive suggestions for corrective actions . . . .” (HR Web) - Harassment Policy, para. 14: “. . . feedback should be made in a reasonable and constructive manner and should not be used as retaliation.” - Applicant’s FY2010 APR praised her “oral presentation skills,” stating she “speaks clearly, articulately, and persuasively to command attention, establish credibility and gain influence,” including “providing strong documentation in support of her arguments.” - APR narratives of FY2008, FY2009 and FY2010 describe Applicant as a “very successful manager who is highly popular with her staff” (FY008 APR), with no evidence she lacked collegiality except for a difficult relationship with the Department Director. ### Tribunal conclusions on hostile work environment and contributing factors - The Tribunal concludes Applicant established she “reasonably perceived” the Department Director’s July 2009 comments as “offensive or intimidating.” (Harassment Policy, para. 9.) - Although the comments alone did not meet the Harassment Policy definition of “sexual harassment,” when considered cumulatively with other conduct they form part of a pattern of unfair treatment constituting a hostile work environment. - Factors the Tribunal identifies as supporting that conclusion: - (a) the history of sexual harassment in the Department and Applicant’s particular vulnerability from earlier complaints raised on behalf of subordinate staff; - (b) the comments occurred in the context of Applicant seeking performance feedback and implicitly challenging unfair treatment affecting her career advancement; - (c) even accepting the Department Director’s explanation, the comments reveal a gendered approach to responding to a subordinate’s career aspirations; - (d) the reasonableness of Applicant’s perceptions is supported by similarly situated staff reactions. ### Fund’s failure to respond effectively — Tribunal reasoning on liability - Respondent’s argument that “nonfeasance” is non-justiciable and beyond the Tribunal’s jurisdiction is rejected by the Tribunal. - The Tribunal’s precedent: liability may be found where the Fund “failed effectively to respond” to harassment or intolerance (Mr. “F”, para. 100; Mr. “DD”, para. 113). - Fund internal law (Discrimination Policy, Section III) recognizes prohibited discrimination may be manifested by “action, or inaction (such as the failure to take appropriate action in response to a complaint of discrimination).” - The Tribunal has previously awarded relief for the Fund’s failures to act in accordance with legal obligations or principles of fair treatment (e.g., Ms. N. Sachdev, IMFAT Judgment No. 2012-1, paras. 250, 256). ### Duties of managers and limits of reliance on Ethics investigations - Fund policies impose duties on managers to “stop harassment in the areas under their supervision.” (Harassment Policy, para. 18.) - Discrimination Policy, Section I: managers must “create and maintain a supportive and encouraging working environment for all employees and take all reasonable actions necessary to prevent and address undesirable or inappropriate behavior.” - GAO No. 33 (Annex 6: Retaliation): managers are expected to “create an atmosphere where staff will feel free to use existing channels for workplace conflict resolution without fear of reprisal.” - The Tribunal rejects the idea that initiating an Ethics Office investigation automatically absolves the Fund of responsibility for adverse effects on a complainant’s employment; Ethics Office procedures and the Administrative Tribunal’s review are independent and an Ethics investigation does not “shield the Fund from responsibility before the Administrative Tribunal for the effect of alleged misconduct on the conditions of employment of other staff members.” ### Case-specific facts on the Fund’s response - Applicant raised allegations of sexual harassment with the Ombudsperson in July 2009 and with the HRD Director in October 2009; Applicant also raised the Department Director’s allegedly disparaging remark with her SPM. (7/10/12 Tr. 30; 7/9/12 Tr. 152-153) - Applicant faults the Ombudsperson and HRD Director for failing at that time to request an Ethics investigation. - The record shows the HRD Director later acted—after pressure from three members of the RC in late November 2009—to encourage the Department to resubmit Applicant’s candidacy for the B List for the RC’s January 2010 meeting, contributing to Applicant’s advancement to the B List in 2010. - In late 2011, the Fund’s Ethics Office launched an investigation pursuant to GAO No. 33 into alleged misconduct by the Department Director, SPM, and Division Chief. ### Tribunal’s summary conclusions - Responsibility for the pattern of unfair treatment lies with the Applicant’s Department Director; senior officials have explicit responsibility to ensure a workplace free from discrimination, harassment and retaliation. - When a hostile work environment arises directly from the conduct of a senior official, the Fund’s responsibility ordinarily follows as a matter of course. - Undertaking an Ethics investigation does not, by itself, absolve the Fund of responsibility before the Tribunal for the employment effects of alleged misconduct. *Source: Tribunal findings (IMF Administrative Tribunal).* ### 275. In the view of the Tribunal, however, what is significant about these events is that the ### j2015-3 - 275. In the view of the Tribunal, however, what is significant about these events is that the ### Tribunal’s view on the significance of events - The adverse effects of the hostile work environment upon Applicant’s employment relationship with the Fund did not begin to abate until she drew attention to the pattern of unfair treatment by sharing her experiences informally with a group of female senior staff members. (para. 275) - That Applicant felt the need to pursue informal channels rather than the Fund’s formal recourse procedures “speaks to the intimidation that Applicant experienced in response to the conduct of the Department Director.” (para. 275) ### Intimidation, informal reporting, and corroborating responses - Responses from senior women economists to Applicant’s informal disclosures illustrate the intimidation and risk of reprisal: - One stated: “I too wish we could confront him without destroying her—but am not sure that is possible.” (Email exchange of November 23, 2009.) (para. 276) - Another asked: “. . . presumably she should a) talk to ombudsman and b) try to get out of [the Department]?” (para. 276) - A third queried: “What can we advise her? I wonder if she has taken recourse to any of the grievance procedures. My guess is that she has not because crossing Mr. X can be a lethal proposition.” (para. 276) - These responses: - Demonstrate the reasonableness of Applicant’s actions in the face of unfair treatment by a senior Fund official. (para. 276) - Demonstrate the Department Director’s failure to fulfill his duty to “. . . create an atmosphere where staff will feel free to use existing channels for workplace conflict resolution without fear of reprisal.” (GAO No. 33 (Conduct of Staff members) (May 18, 2011), Annex 6: Retaliation.) (para. 276) ### Adequacy of the Fund’s institutional response - The Tribunal posed whether the HRD Director’s response and the Ethics Office’s investigation were adequate to meet the Fund’s obligations to maintain a workplace free from unfair treatment. (para. 277) - Tribunal conclusion on adequacy: the Fund failed in its responsibility to respond effectively to the hostile work environment. (para. 278) - Primary responsibility lies with the Department Director, a senior official. (para. 278) - Applicant reasonably sought out her SPM, the Fund’s Ombudsperson, and the HRD Director to bring the pattern of unfair treatment to higher managerial authority. (para. 278) - Only as a result of informal intervention by other staff did the HRD Director act to mitigate—partially—the effects of the Department Director’s unfair treatment of Applicant in the 2009 B List process. (para. 278) - Initiation of an Ethics investigation in response to Applicant’s formal Ethics complaint does not absolve the Fund from responsibility for the pattern of unfair conduct. (para. 278) ### Hostile work environment: definition, instances, and Tribunal’s conclusions - Hostile work environment may manifest in a variety of ways under the Fund’s internal law and general principles of international administrative law. (para. 279) - The Tribunal holds that a hostile work environment may exist when a senior staff member unreasonably and repeatedly impedes a subordinate’s opportunities for career advancement on the basis of considerations unrelated to professional qualifications. (para. 279) - Applicant substantiated that, at three key junctures, the Department Director engaged in actions that had an unfair and adverse effect on her conditions of employment: - (i) the February 2009 RC meeting, at which the Department Director’s conduct served to disfavor Applicant’s advancement to the B List; (para. 280) - (ii) the Department Director’s statement to Applicant after the 2009 vacancy selection process that the Department would not renominate her for the B List; (para. 280) - (iii) the Department Director’s dismissive and gender-based comments to Applicant when she sought to address with him the unfair treatment affecting her career progression. (para. 280) - The Tribunal examined incidents as markers delineating a “pattern” of unfair treatment, not in isolation, using the Discrimination Policy, Section III definition of pattern: “pattern of words, behaviors, action or inaction (such as the failure to take appropriate action in response to a complaint of discrimination), the cumulative effect of which is to deprive the individual of fair and impartial treatment.” (para. 281) ### Admissibility and standing: challenges to non-selection and APR decisions - Issues framed as dispositive for admissibility: - (i) Did the 2009 non-selection decision constitute an “administrative act” that adversely affected Applicant within Article II, Section 1(a), of the Statute? (para. 283) - (ii) Does Applicant have standing to challenge the 2010 and 2011 non-selection decisions? (para. 283) - (iii) Did Applicant raise a timely challenge to her FY2009 APR decision? (para. 283) - 2009 non-selection decision: - The 2009 Selection Panel recommendation to appoint the “selectee” was not implemented; the vacancy was cancelled, a new vacancy was posted in 2010, and a new selection process launched. Applicant did not apply for the vacancy when advertised in 2010. (para. 285) - Given cancellation and non-implementation, the 2009 recommendation had no direct legal effect or consequences for Applicant; the 2009 vacancy selection process did not constitute an “administrative act adversely affecting” Applicant within the meaning of the Statute. (para. 286) - Although Applicant was adversely affected by subsequent communications from the Department Director (including the statement that she would not be renominated to the B List), that does not convert the cancelled 2009 recommendation into a separate administrative act that can be challenged. (paras. 287–288) - Standing to challenge 2010 and 2011 non-selection decisions: - Respondent argues Applicant lacks standing because she did not apply for those vacancies. (para. 289) - Applicant contends she was a candidate for the 2010 vacancy when initially advertised in 2009 and that the selection decision was not finalized until April 2010. (para. 290) - Tribunal determined the 2009 and 2010 selection processes were separate; having not applied for the separate 2010 vacancy, Applicant may not contest the resulting 2010 non-selection decision. (para. 291) - For 2011, Applicant did not apply; she contends she was effectively barred by constructive discharge due to harassment and that the Fund failed in its obligation to address misconduct. (para. 292) - Legal standard for standing: Article II, Section 1(a), requires the applicant be “adversely affected” by an administrative act; the Tribunal has emphasized that a staff member applying for a vacancy has a right to have his or her candidacy fairly considered. (paras. 293–294) - Because Applicant was not a candidate for selection in 2010 and 2011, decision-makers were neither obliged nor entitled to consider her eligibility; she cannot establish she was adversely affected by those selection decisions and therefore lacks standing to challenge them. (paras. 295–296) - The Tribunal nonetheless accepts Applicant may have been discouraged from applying because of the hostile work environment, but that hostile work environment claim is separate and cannot alone confer standing to challenge selection decisions. (para. 296) - Conclusion: an applicant may not challenge a selection decision where he or she has not been a candidate for selection; however, a separate claim for relief remains open where an applicant did not apply because of a pattern of discrimination, harassment, retaliation and/or a hostile work environment. (paras. 297–298) - Timeliness of challenge to FY2009 APR decision: - GAO No. 31 (Grievance Committee), Rev. 4 (October 1, 2008), Section 6.02, requires formal challenges to career decisions be initiated “within six months after the challenged decision was made or communicated to the staff member, whichever is later.” Applicant did not challenge her FY2009 APR decision until filing her first request for administrative review on December 8, 2010. (paras. 299–300) - Tribunal acknowledges “exceptional circumstances” may excuse delay in initiating administrative review and may consider such possibility even where the Grievance Committee disallows a claim; recourse procedures are complementary and meant to afford remedies where merited. (para. 300) - Exhaustion requirement rationale: Article V, Section 1, and Commentary on the Statute emphasize that the Tribunal is forum of last resort after other recourse channels have been attempted; exhaustion serves to provide opportunities for resolution and to build a detailed record for adjudication. (paras. 301–302) - The Tribunal recognizes dual purposes of exhaustion: resolution opportunities and record-building, which are best served “‘when memories are fresh, documents are likely to be in hand, and disputed decisions are more amenable to adjustment.’” (para. 302) *IMF Administrative Tribunal judgment excerpts (paras. 275–302).* ### 303. Given the importance of the purposes served by the requirement of exhaustion of ### 303–330: Given the importance of the purposes served by the requirement of exhaustion of administrative review ### Legal standard for excusing failure to exhaust administrative review - The Tribunal has held that the requirement of exhaustion of administrative review “should not be lightly dispensed with and ‘exceptional circumstances’ should not easily be found.” (Estate of Mr. “D”, para. 104). - In evaluating factors that may excuse failure to initiate administrative review on a timely basis, the Tribunal will consider the “extent and nature of the delay, as well as the purposes intended to be served” by the requirement for exhaustion of administrative remedies. (Estate of Mr. “D”, para. 108). - GAO No. 31, Section 6.01.1 sets out the purposes of administrative review as: - “(1) to determine whether the original decision is valid—that is, whether the relevant policies and procedures were correctly interpreted and applied; - (2) to allow the original decision to be amended if it is found not to have been correctly decided; and - (3) to give finality to the administrative decision.” (GAO No. 31, Section 6.01.1). ### Applicant’s principal arguments for “exceptional circumstances” - Applicant contends that “exceptional circumstances” excuse her delay in challenging the FY 2009 APR decision on four grounds: - (a) the contested decision formed part of a pattern of unfair treatment; - (b) the Discrimination Review Exercise (DRE) and other Fund policies evidence an “administrative practice” of remedying discrimination after deadlines have passed; - (c) the purposes of administrative review have been fulfilled in the circumstances of her case; and - (d) Applicant feared retaliation by her Department Director if she initiated formal dispute resolution while under his supervision. ### Tribunal’s analysis of Applicant’s argument (a): pattern of unfair treatment - The Tribunal found Applicant had brought an admissible claim that she was subject to a pattern of unfair treatment constituting a hostile work environment and that the Fund failed effectively to respond. - Precedent (Mr. “F”, IMFAT Judgment No. 2005-1) recognized jurisdiction to consider whether a “pattern” of unfair treatment existed, but did not permit bypassing the requirement to seek administrative review of each individual administrative act. - Fund internal law distinguishes between discrimination as a “pattern” and a “single decision” (examples of a “single decision” include “a decision not to convert a fixed-term appointment [or] a denial of a promotion”). (Discrimination Policy, Section III.) - The Tribunal concluded that alleging an administrative act forms part of a pattern of prohibited conduct does not, by itself, constitute “exceptional circumstances” that excuse failure to file a timely challenge to that administrative act. ### Tribunal’s analysis of Applicant’s argument (b): DRE as an “administrative practice” - The DRE was a one-time exercise to remedy claims of past discrimination in which claimants would not be held to statutes of limitation. (See Ms. “W”, IMFAT Judgment No. 2005-2, para. 121; Ms. “Y” (No. 2), IMFAT Judgment No. 2002-2, para. 40.) - The Tribunal reaffirmed that, notwithstanding the Fund’s human resource functions creating alternative dispute resolution mechanisms like the DRE, the Administrative Tribunal remains controlled by its Statute and cannot treat the DRE as creating a continuing right to launch discrimination claims after deadlines have expired. - The Tribunal concluded the Fund’s policies, including the DRE, do not represent an “administrative practice” that entitles staff to launch discrimination claims after the expiration of requisite deadlines. ### Tribunal’s analysis of Applicant’s argument (c): whether administrative-review purposes were fulfilled - Applicant argued that the “channels of review have been completely exhausted” for the FY2009 APR because the Grievance Committee record included background evidence and an evidentiary record had been built. - Respondent maintained it “did not mount a defense to these individual claims as they were beyond the jurisdiction of the grievance proceedings,” and that late review now would be “highly prejudicial” on a one-sided record. - The Tribunal emphasized purposes of exhaustion: “providing opportunities for resolution of the dispute and for building a detailed record in the event of subsequent adjudication.” (Estate of Mr. “D”, para. 66.) - The Tribunal was unable to conclude that the Fund had fully presented its defense on the merits of the FY2009 APR challenge and stressed the fundamental principle that litigants must have a proper and timely opportunity to know and respond to the case against them. - Conclusion: the Tribunal did not find that the purposes of administrative review had been fulfilled so as to constitute “exceptional circumstances” excusing the late filing. ### Tribunal’s analysis of Applicant’s argument (d): fear of retaliation - Applicant asserted she feared retaliation if she invoked formal dispute resolution while under the Department Director’s supervision and thus pursued informal avenues; she filed for administrative review in December 2010, after transfer to a new Department in May 2010. - Respondent argued that permitting fear of retaliation to excuse late filing would undermine the effective functioning of the Fund’s dispute resolution system. - The Tribunal acknowledged the importance of robust enforcement of protections against retaliation and accepted that fear of retaliation might, in some circumstances, excuse failure to pursue administrative review promptly. - However, the Tribunal held that a staff member should pursue channels as soon as reasonably possible once the threat of retaliation has diminished. The Tribunal noted Applicant provided no explanation for waiting six months after transfer before filing for administrative review. - Conclusion: Applicant did not establish that fear of retaliation constituted “exceptional circumstances” to excuse the delay in initiating administrative review for the FY2009 APR. ### Tribunal’s admissibility conclusions regarding specific challenges - The Tribunal concluded Applicant has not raised admissible challenges to: - the 2009 non-selection decision (the Selection Panel recommendation that was not implemented because the vacancy was cancelled did not constitute an “administrative act” adversely affecting Applicant); - the 2010 and 2011 non-selection decisions (Applicant lacked standing because she did not apply for those vacancies); - the FY2009 APR decision (Applicant did not launch a timely challenge and “exceptional circumstances” do not excuse the late filing). ### Challenge to the FY2010 APR decision: standard of review and causal link - The FY2010 APR challenge is admissible; the FY2010 APR rated Applicant “Effective,” described as the lowest of three possible ratings on a scale that allowed Departments to rate not more than 15 percent of their staff as “Superior” and another 15 percent as “Outstanding” (the top rating). - Standard of review: a challenge to an APR decision will succeed only if the applicant shows the decision was “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.) - The Tribunal affords deference to managerial discretion, particularly in assessments of qualifications and abilities, and will not substitute its judgment for that of supervisors “in the absence of clear error or improper motive.” (Ms. “JJ”, IMFAT Judgment No. 2014-1, para. 51; Ms. “BB”, IMFAT Judgment No. 2007-4, para. 108.) - Because the essence of Applicant’s challenge is that the FY2010 APR was improperly motivated by the same pattern of unfair treatment centered on the Department Director, the Tribunal will closely consider the Department Director’s role in the performance assessment process and require evidence of a reasonable and observable basis for the decision. - To establish abuse of discretion on the ground of improper motive, an applicant must show a “causal link” between the alleged improper motive and the contested decision. (Ms. C. O’Connor (No. 2), IMFAT Judgment No. 2011-1, paras. 172, 178; Mr. “F”, IMFAT Judgment No. 2005-1, para. 90.) *Source: IMF Administrative Tribunal (paras. 303–330).* ### 331. The record shows that the process for awarding APR ratings in Applicant’s Department ### 331. The record shows that the process for awarding APR ratings in Applicant’s Department ### APR awarding process in Applicant’s Department - FY2010 APR process began with an assessment by the Division Chief, who made a proposal to the front office in a bilateral discussion. (9/16/11 Tr. 257-259.) - That bilateral discussion was followed by a Department-wide roundtable “where the ratings of all the staff in the department are decided, again taking into account that there are numerical quotas.” (9/16/11 Tr. 414-415.) - Both the Division Chief and the SPM confirmed: “we always get more proposals for outstanding and superior ratings than we have available” and the aim of the roundtable is to “. . . have this discussion across divisional lines.” (9/16/11 Tr. 259, 283 [testimony of SPM]; 9/16/11 Tr. 414-415 [testimony of Division Chief].) - Inherent in the process is that staff proposed at the outset for an “Effective” rating are not likely to be the subject of much further discussion. ### Applicant’s allegations of improper influence - Applicant alleges the Department Director could influence APR ratings directly and indirectly, asserting the Division Chief was not an “independent author” of her FY2010 APR but was “influenced by” the Department Director. - Applicant contends the Division Chief had a history of being a “team player” and “good soldier” to the Department Director. The Division Chief acknowledged that “being a good soldier is sometimes an appropriate attribute” and denied being under pressure from the Department Director or SPM to change performance ratings. (9/16/11 Tr. 444; 9/16/11 Tr. 440-441.) ### Evidence on who authored the FY2010 APR and inputs to the decision - The record shows the FY2010 APR decision originated with the Division Chief and that he was its principal author. The SPM confirmed the Division Chief recommended the “Effective” rating. (9/16/11 Tr. 264.) - In making the recommendation, the Division Chief also received input from another supervisor who supervised a portion of Applicant’s activities and had input into the FY2010 APR decision. That supervisor testified: “I was happy with her work, but that didn’t represent any outstanding or exceptional performance on her part, particularly because nothing really new or different or particularly demanding was asked of her in those respects.” (9/16/11 Tr. 467.) ### Criteria and rationale given for the FY2010 “Effective” rating - The FY2010 APR decision was based on “both absolute performance (contributions against objectives and other assignments, plus competencies displayed) and relative performance (peer comparisons, complexity/difficulty level of the assignments, impact on division/departmental results and workload).” (APR Form: Applicant’s FY2010 APR.) (Emphasis in original.) - The Division Chief said he relied on Department “guidelines” and “quantitative indicators,” and that “. . . at the end of the day, it is a relative ranking.” (9/16/11 Tr. 413-414.) - Department Director described allocation of “Outstanding” and “Superior” ratings as “highly-rationed” and rationed to preserve some for those who “have really given a lot of blood in a particular year.” (9/15/11 Tr. 55-56.) ### Comparisons, Applicant’s research recognition, and peer assessments - Applicant argued comparisons with colleagues were necessary to show improper motive and to demonstrate she merited an “Outstanding” rating, citing research publication recognition. - Department Director testified Applicant had been rewarded previously for a prestigious journal publication but that “that paper was done long before 2010.” (9/15/11 Tr. 56.) - Division Chief testified: “we only are allowed to take credit for a piece of work once.” (9/16/11 Tr. 421.) Applicant had received an “Outstanding” for an earlier rating year. - Division Chief summarized Applicant’s strengths as “very strong analytical qualities, her consistent record in doing research… ability to help younger members… giving them good solid advice.” (9/16/11 Tr. 418-419.) - Division Chief cited shortcomings as “[h]ow to enroll others in one’s views and positions and . . . lateral and upper communication skills and effectiveness.” (9/16/11 Tr. 419; 9/16/11 Tr. 426-427.) - Division Chief compared Applicant to another Division staff member who received an “Outstanding” in FY2010, stating that colleague was performing “above grade level in terms of these criteria, and that’s what sort of swayed me.” (9/16/11 Tr. 418.) - SPM’s view: Applicant “was doing research, but compared to the comparators in that year, 2010, it did not seem outstanding. It did not seem superior. But, in any case, for a manager, managerial capabilities are much more important.” He cited a mission in early 2010 as having “substantial managerial problems.” The SPM concluded: “[I]t seemed to me that the effective rating was correct, and she had already indicated that she was leaving the department. It didn’t seem that there was a lot to discuss.” (9/16/11 Tr. 314-315.) ### Content of Applicant’s FY2010 APR narrative - Narrative comments are strongly positive: Division Chief stated Applicant “contributed enormously to maintaining a high standard of analytical excellence in the division,” called her an “effective partner” in running the Division, stated he had “relied on [her] considerable analytical and managerial skills,” and that “[s]he is fully capable of running her own division.” - Division Chief also noted Applicant “. . . continued to pursue an active, productive and policy-relevant research agenda that is having an impact within the Fund and in the broader economic policy community.” - Developmental area identified: “[Applicant] is an accomplished manager. She could benefit from additional, higher-level management training and regular coaching as she assumes the more complex role of leading area department missions.” ### Observations about the rating category and evidentiary standard - Under FY2010 rules, at least 70 percent of staff were to be allocated an “Effective” rating; the rating category therefore covered a broad spectrum of performance. - The Tribunal notes multiple factors are weighed in assigning ratings, including analytical and managerial competencies, and ordinarily will not second-guess managers’ assessments of relative strengths and weaknesses. - In an environment where upper ratings are highly rationed, it is difficult for an applicant to show abuse of discretion. The Tribunal emphasizes that narrative assessments should provide candid feedback so staff may improve. ### Tribunal’s conclusions on Applicant’s FY2010 APR challenge - The Tribunal cannot conclude the Department Director influenced the Division Chief, directly or indirectly, in appraising Applicant’s performance for FY2010. - The evidence supports that: - The Division Chief originated and principally authored the FY2010 APR and recommended the “Effective” rating. (9/16/11 Tr. 264.) - There was a reasonable and observable basis for the “Effective” rating. - Higher ratings were scarce and “highly rationed” under applicable rules. - Applicant has not shown the Division Chief harbored improper motives in recommending the rating. - Conclusion: Applicant has not substantiated that her FY2010 APR decision represented an abuse of discretion. The Tribunal finds she did not meet the burden of showing the decision was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” The decision is supported by testimony of the responsible supervisors. - The Tribunal nevertheless concluded elsewhere that Applicant was the object of a pattern of unfair treatment by the Department Director constituting a hostile work environment, but that finding does not establish that the FY2010 APR decision was tainted by the same pattern. *Source: Tribunal judgment (Applicant v. International Monetary Fund).* ### 357. In the view of the Tribunal, Applicant’s challenge to the revised promotion policy is ### j2015-3 - 357. In the view of the Tribunal, Applicant’s challenge to the revised promotion policy is ### Admissibility and linkage to individual decisions - Applicant’s November 14, 2011 request for administrative review challenged the “application of the new revised promotion policy from B1 to B2” and sought as relief “eligibility for promotion to B2 as of November 1, 2012 or earlier.” - The Acting HRD Director treated the request as an exception request and denied it: “While there were some transitional arrangements for the 2011 promotion round, you fell well short of the 12 months of service at B1 that would have allowed you to be promoted in November 2011. With respect to the 2012 promotion round and beyond, the new 18-month minimum requirement applies and I see no basis for making an exception in your case and allow a promotion short of that 18-month requirement.” - Requests for exception to the revised policy were made on Applicant’s behalf in July 2011 and July 2012 by SPMs of two Departments; HRD’s final denial of those requests was made on September 11, 2012. - The Tribunal found that the decisions denying exceptions were “individual decision[s] taken pursuant to [the] regulatory decision” revising the B1/B2 promotion policy, and that Applicant was “adversely affect[ed]” by those decisions within the meaning of Article II, Section 1, of the Statute. - Conclusion: Applicant raises admissible challenges both to the revised promotion policy and to its application to her. ### Tribunal’s standard of review for regulatory decisions - The Tribunal’s deference is highest for regulatory decisions as contrasted with individual decisions (citing IMFAT precedent). - Constraints on discretionary authority derive from de Merode, WBAT Decision No. 1 (1981): institutional changes to non-fundamental terms of employment constitute an abuse of discretion if: - adopted for reasons alien to proper functioning of the organization and its duty to ensure staff of “the highest standards of efficiency and of technical competence”; - not based on a proper consideration of relevant facts; - not reasonably related to the objective they intend to achieve; - made in bad faith or prompted by improper motives; - discriminatory in an unjustifiable manner between individuals or groups within the staff; - not made in a reasonable manner seeking to avoid excessive and unnecessary harm to the staff. - The Tribunal will consider the care with which a reform has been studied and the conditions attached to a change. ### History and stated objectives of the B1/B2 promotion reform (2009–2011) - Prior regime: Staff Bulletin No. 03/27 (December 19, 2003) characterized Grade B1 as primarily a “pass-through” grade for economists; TIG in practice dominated growth promotions for economists up to B2 (Phase I Memorandum, September 15, 2009, p. 4). - 2009 issues identified: - Inequity between economists and SCS regarding TIG and career advancement. - September 2009 HRD proposal (Phase I) included: - “For promotions to Grade B2, replace TIG by a systematic talent review in the Review Committee (RC), based on consistent criteria for economists and specialized career stream staff (SCS).” - Note: “It is expected that most staff will have at least one year of seasoning at B1. However, in exceptional circumstances, promotion to B2 could occur in less than one year.” (Phase I Memorandum, note 1.) - Move to an annual cycle for growth promotions (November 1). - Phase I implementation: annual cycle established; replacement of TIG with systematic talent review for B2 did not materialize in FY2010. - 2010 Phase II memorandum described intended accomplishments including replacing TIG with systematic talent reviews for B-level staff and harmonizing rules for economists and SCS. - June 9, 2011 “2011 Promotion Policy Reform Memorandum” (final HRD memorandum) set out the new policy for “growth” promotions up to grade B2, describing: - Main objective: “support individual career growth based on staff strengths and institutional needs.” - Move away from TIG to more substantive criteria: “replace TIG by an assessment of staff competencies and experience, through talent reviews, and integrates promotion decisions with the evolving budget framework.” - Main Recommendations: “Replace TIG with promotion criteria supported by competency frameworks, which will be applied in departmental talent reviews; Introduce promotion budgets in the form of a ceiling on the number of A-level growth promotions each department can accommodate; Shift to a unified approach for promotions to B2 and harmonize time spent at B1 to 18 months.” - Memorandum rationale for 18-month TIG for B1→B2: - Ensure at least one full APR assessment (May to April) prior to candidacy for B2. - Allow candidates “sufficient time to absorb initial feedback and benefit from training and coaching support for new managers.” - Address managerial capacity concerns and increase emphasis on leadership and people management, reflected in staff survey. - Consultation process: policy developed in “close consultation with departments, staff focus groups, and the SAC,” with some departments expressing concern about lengthening TIG to 18 months for economists; unifying the process across career streams described as a “reasonable compromise.” ### Applicant’s attack and Fund’s defense on the TIG increase to 18 months - Applicant’s contentions: - Increasing TIG to 18 months for economists was arbitrary and inconsistent with reform objectives to “move away from time-in-grade (TIG) to more substantive criteria.” - TIG for economist promotions to B2 should have been eliminated; the 18-month TIG made promotions “unduly rigid and bureaucratic.” - The consultation process had allegedly generated consensus to eliminate TIG at B1; HRD “inexplicably . . . overturned the earlier consensus agreement and suddenly set TIG for B2 promotion at 18 months” for economists. - HRD was not disinterested because the proposal would benefit its own staff. - Fund’s response: - The 18-month TIG requirement was intended to ensure that, regardless of when promoted to B1 during the calendar year, staff would have had one full APR cycle in that position before being considered for promotion to B2. - Operationalization: to be considered for promotion to B2 on November 1 of any given year, staff would need to have been promoted to B1 on or before April 30 of the preceding year. - Management reasonably used the dates of the Fund’s APR year as the framework for establishing TIG triggers. - The revision aimed to place “greater emphasis on managerial performance and competencies,” facilitated by having one full APR assessment prior to B2 consideration. ### Tribunal’s analytical approach and precedent considerations - Tribunal precedent supports rejection of arbitrariness challenges when policy results from “extended consideration” and consultation; it recognizes that consultation may lead to accepting some recommendations and rejecting others. - The Tribunal considers whether the decision was the outcome of deliberation, supported by evidence, and reasonably related to objectives (citing prior cases and de Merode). ### Findings and conclusion (up to the provided text) - The Tribunal concluded that the Applicant’s challenges to both the revised promotion policy and its application to her are admissible. - The Tribunal set out the standard of review and the factual and consultative history of the reform, and framed the core question: whether increasing TIG for economists to 18 months was based on appropriate consideration of relevant facts and reasonably related to the objectives of the promotion reform. *International Monetary Fund Administrative Tribunal judgment (excerpt).* ### 382. In that case, the decision-making process had included an initial review of the ### j2015-3 - 382. In that case, the decision-making process had included an initial review of the ### Tribunal assessment of the decision-making process and reasonableness - The Tribunal found the Executive Board’s ultimate decision “did not mirror precisely any one of these different proposals or points of view, but rather reflected a process of compromise and deliberation.” (Id., para. 94) - The Tribunal concluded that such compromise “does not mean that the decision failed to take proper account of the relevant facts or that the provisions adopted are not reasonably related to the objectives that they seek to achieve.” (Id., para. 94) - The record showed stakeholder views “had varied over time.” (Id., para. 95) - The Tribunal repeatedly recognized that deliberative outcomes may reflect compromises in weighing competing interests (citing Ms. “G”, de Merode, Daseking-Frank et al., and others). ### Promotion policy revision: objectives and rationality - Stated policy goal: “replace” TIG with promotion criteria so TIG would no longer be dispositive of “readiness” for promotion; policy nonetheless acknowledged that “experience” (which may be measured by TIG) would be considered. (Tribunal view: not incoherent but a resolution of competing considerations.) (para. 386) - The Fund retained a TIG requirement and phased in an APR-cycle alignment: - Minimum TIG at B1 for economists extended from 12 months to 18 months to capture a full APR cycle. (para. 387) - Tribunal concluded setting the benchmark at 18 months “was rationally related to the overall purpose of the policy reform to give greater emphasis to performance and readiness for promotion.” (para. 387) - Stakeholder input: - Staff Association Committee advocated for “. . . a continuing role for TIG as a proxy for experience, and expressed reservations about the complete removal of TIG for any grade level . . . .” (Phase I Memorandum, p. 3.) (para. 388) - HRD Director: the point “. . . well taken and will be taken up in the discussion of Phase II.” (para. 388) - Tribunal conclusion: the revision to include an 18-month TIG before B1 staff eligibility for B2 was reasonably related to the objective of enhancing managerial experience prior to promotion to B2, and the intent to “move away from” TIG as the primary basis for B1/B2 promotion formed part of the balancing of relevant factors. (paras. 389–391) ### Nondiscrimination and the “rational nexus” test - The Tribunal reaffirmed non-discrimination as a substantive limit on discretionary authority in international administrative law. (para. 393) - The Tribunal applied the “rational nexus” test (as stated in Mr. “R”): - Respondent’s proffered reasons must be supported by evidence; the Tribunal may ask whether the decision “. . . could . . . have been taken on the basis of facts accurately gathered and properly weighed.” (Mr. “R”, para. 47) (para. 395) - The Tribunal must find a “. . . rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” (para. 395) - The central issue: whether differential treatment arising from changes to TIG requirements (economists: 12 months → 18 months; SCS staff: 3 years → 18 months) was rationally related to the objectives of augmenting managerial experience and undoing perceived unfairness in career progression. (para. 396) ### Parties’ positions and Tribunal findings on differential impact - Fund’s position: - Prior policies established more and lengthier TIG requirements for SCS staff than economist staff. - Revised policy sought to reduce differential treatment among senior managerial staff and harmonize requirements because senior B-level roles focus more on management and leadership skills than technical expertise. (para. 399) - Applicant’s contention: - The facial neutrality of the rule masked an adverse and unjustified impact on economists; economists had been advantaged and the change disadvantaged them. (paras. 397, 400) - Many SCS staff receive higher salaries and so may not require the same career progression speed as economists. (para. 400) - Tribunal findings: - A “key issue” motivating reform was a perception of unequal treatment disadvantaging SCS staff. (para. 401) - Consideration of fair treatment between economists and SCS staff “weighed heavily” in the process that produced the policy choice. (para. 402) - Applying the same TIG requirement to both streams from B1 to B2, in context of other revisions, was not unreasonable in light of articulated considerations. (para. 402) - Unifying the promotion process necessarily treated previously differentiated groups alike, disadvantaging those previously advantaged by a shorter TIG; such differential treatment could be impermissible only if lacking a rational nexus or a rational basis — which the Tribunal did not find here. (paras. 403–404) - The Tribunal concluded the policy revision was based on appropriate consideration of relevant facts and reasonably related to its objectives, including removing perceived inequalities; disagreement by stakeholders, including Applicant, did not render it arbitrary or discriminatory. (para. 404–405) ### Application of the revised policy to Applicant — key procedural dispute - Applicant’s three alternative arguments for non-application of the revised policy to her case: 1. She was unfairly denied the benefit of the “transitional measure” adopted as part of the policy revision. 2. The policy purpose (strengthening managerial skills prior to promotion to B2) did not apply because she was already a seasoned manager before promotion to B1. 3. Had her career progression not been delayed by alleged discrimination/retaliation/harassment/hostile work environment, she would have reached B1 before May 1, 2011 and would have been governed by the earlier 12-month rule. (para. 407) - Tribunal decisively agreed with Applicant’s first contention and therefore did not need to address the other two arguments. (para. 407) - Central question on the transitional measure: - Was it arbitrary to apply the benefit of the pre-existing promotion policy only to staff who had reached Grade B1 as of November 1, 2010, but not to staff (including Applicant) appointed to B1 after that date and before the July 1, 2011 announcement of the revised policy? (para. 408) - Applicant’s characterization of the transitional measure’s effect: - The transitional measure created three categories regarding expectations for B2 eligibility: - (i) Staff at B1 as of November 1, 2010: transitional measure preserved 12-month TIG, allowing promotion to B2 on November 1, 2011. (para. 409) - (ii) Staff promoted to B1 from November 2, 2010 through April 30, 2011: whether under 12-month or 18-month rule they would be eligible for promotion to B2 on November 1, 2012; their expectations were not changed and no transitional measure was required. (para. 409) - (iii) Staff promoted to B1 between May 1 and July 1, 2011 (including Applicant): at the time of B1 promotion they expected eligibility for B2 within 12 months (i.e., November 1, 2012), but the change extended eligibility to November 1, 2013. (para. 409) *Summary derived from the Tribunal’s findings and reasoning in the cited judgment.* ### 410. Applicant argues: “[E]very economist promoted to B1 before the change in policy on ### Applicant argues: “[E]very economist promoted to B1 before the change in policy on ### Applicant’s argument and claim - Applicant contends that every economist promoted to B1 before the change in policy on July 1, 2011 was able to satisfy their expectation on the timing of their B2 promotion eligibility, except for two staff members promoted to B1 between May 1, 2011 and July 1, 2011 (including Applicant). - Applicant asserts it was unfair that the new policy’s “transitional measure” afforded protection to staff whose B1 promotions had preceded the effective date of the new policy, while excluding those (like Applicant) appointed to Grade B1 between May 1, 2011 and July 1, 2011. - Applicant expected to become eligible for promotion to B2 as of November 1, 2012 given the timing of her B1 appointment in the weeks preceding the July 1, 2011 announcement. ### Transitional measure, Fund explanation, and contested distinction - The Fund stated the transitional measure was to protect staff members’ expectations: “To avoid ‘moving the goal post’ just before selection time, we propose to keep the 12-month TIG for economists and lawyers for the upcoming November 1 promotion round.” (2011 Promotion Policy Reform Memorandum, p. 3.) - The Fund’s explanation for the differential treatment: it “grandfathered those B1 staff members who had held the grade since November 2010, because as of July 1, 2011, they had relied for eight months on the expectation that they could be considered for promotion to B2 on November 1, 2011. Applicant, by contrast, had only been at Grade B1 for less than six weeks when the policy change was announced on July 1.” - The Fund did not provide a detailed, considered rationale for the specific cut-off applied to the transitional measure; no evidence in the record indicates the differentiation was a considered choice comparable to the policy reform process as a whole. ### Tribunal’s legal framework and question of “rational nexus” - The Tribunal applies the “rational nexus” test to assess whether the differential treatment reasonably relates to the purpose of the benefit (protecting expectations). See Weisman, paras. 49-55 and cases cited therein. - Central question: whether the difference in treatment between Applicant and staff who benefitted from the transitional measure was reasonably related to the purposes of the policy. ### Tribunal’s findings on the B1/B2 transitional measure - The Tribunal accepts that the rationale for the transitional measures focused on staff expectations for eligibility for B2 promotion. - The Tribunal finds the Fund’s asserted distinction (length of time expectations had been held) unpersuasive and not a rational and sufficient nexus to justify the cut-off. - The Tribunal notes that all economist staff promoted to B1 before the policy change increasing the TIG for eligibility to B2 had similar expectations; the Fund did not show why a few weeks’ difference in holding the expectation should determine protection. - The Tribunal observes that staff appointed to Grade B1 by the end of April 2011 would have their expectations met, whereas Applicant (appointed between May 1 and July 1, 2011) would not, despite holding their expectation only a short time less. ### Tribunal conclusion on abuse of discretion regarding application - The Fund’s exclusion of staff members whose promotions became effective after November 1, 2010 but before July 1, 2011 (the category including Applicant) was arbitrary. - The Tribunal concludes: the Fund abused its discretion in implementing the transitional measure announced on July 1, 2011 by not affording Applicant the same transitional benefit. ### Tribunal’s conclusion on the B1/B2 policy change itself - The Tribunal concludes Applicant has not shown the Fund abused its policy-making discretion in extending the TIG for economists from 12 months to 18 months for B1→B2 eligibility; that policy decision was reasonably based and emerged from consultation. - The Tribunal finds the policy change was not arbitrary, capricious, or discriminatory vis-à-vis other career streams in the overall policy decision. ### Administrative review and Grievance Committee process issues raised by Applicant - Applicant alleges multiple due process failures and impairments to the evidentiary record, including: - HRD failed to complete the administrative review within the time limits set by GAO No. 31. - HRD failed to interview a key witness in the administrative review. - The Grievance Committee erred regarding disclosure of witness identities and denied requests to call several witnesses. - Improper disclosure of witnesses’ names and failure to contain breaches of confidentiality by a Grievance Committee member. - Lack of mechanism to “summon” or “subpoena” unwilling witnesses. - Failure to ensure a “level playing field,” protect confidentiality, guard against retaliation, and foster witness cooperation. - Respondent contends these challenges are outside the Tribunal’s jurisdiction and without merit. ### Tribunal’s analysis of Grievance Committee record and procedural remedies - The Tribunal reiterates that applicants must exhaust administrative remedies (Article V, Section 1 of the Tribunal’s Statute) and that the Tribunal is not an appellate body limited to review of Grievance Committee decisions; it makes findings of fact and law and may weigh the Grievance record as part of the evidence. - The Grievance Committee’s decisions on admissibility of evidence and production of documents are not reviewable by the Tribunal; they rest within authority granted by GAO No. 31. - The Tribunal has authority under Article X of its Statute and Rules XVII and XIII to order production of documents, request information, and hold oral proceedings to rectify lapses in the evidentiary record. - In this case, Applicant sought production of documents and oral proceedings before the Tribunal; those requests were considered. - Having reviewed the Grievance proceedings record, the Tribunal finds no ground to discount that record or to hold that the administrative review and Grievance Committee processes materially impaired the evidentiary record. - The Tribunal emphasizes the Fund’s internal standards: GAO No. 33 (Conduct of Staff Members) (May 18, 2011), Annex 6: Retaliation, which requires protection against retaliation and expects managers to foster an atmosphere where staff feel free to use dispute resolution channels and to participate as witnesses. ### Tribunal’s observations on systemic issues and integrity of dispute resolution - The Tribunal stresses the importance of fairness and strict confidentiality in all steps of administrative review and Grievance Committee processes for the robustness and integrity of the Fund’s dispute resolution system. - To the extent systemic issues are raised, it is for the Fund’s policy-making organs to address them in light of the Tribunal’s observations. ### Final findings and conclusions of the Tribunal (summary) - Applicant raised an admissible claim that she was subject to a pattern of unfair treatment constituting a hostile work environment; she timely challenged her FY2010 APR decision as a culminating act. - The Tribunal concluded Applicant was subject to a hostile work environment and that the Fund failed effectively to respond; that environment unreasonably impeded Applicant’s career advancement for reasons unrelated to professional competence. - The Tribunal sustained Applicant’s challenge to the application of the July 1, 2011 transitional measure (abuse of discretion in its implementation) but did not find the underlying policy change from 12 months to 18 months TIG for economists to be an abuse of policy-making discretion. *Excerpt from the IMF Administrative Tribunal Judgment.* ### 435. Third, although Applicant has brought a timely challenge to a pattern of unfair treatment, ### j2015-3 - 435. Third, although Applicant has brought a timely challenge to a pattern of unfair treatment, ### Tribunal findings on admissibility and merits of career-related challenges - The Tribunal concluded that Applicant brought a timely challenge to a pattern of unfair treatment constituting a hostile work environment, but failed to raise admissible challenges to several separate career decisions. - Specific admissibility determinations: - The 2009 non-selection “decision” (the Selection Panel recommendation that was not implemented because the vacancy was cancelled) did not constitute an “administrative act” adversely affecting Applicant within the meaning of the Tribunal’s Statute. - Applicant lacks standing to challenge the 2010 and 2011 non-selection decisions because she did not apply for the vacancies in question. - Applicant did not launch a timely challenge to her FY2009 APR decision; “exceptional circumstances” do not excuse her late filing. - Merits determinations: - Applicant did not show that the Fund abused its discretion in taking her FY2010 APR decision; she failed to show a causal link between the Department Director’s conduct and the APR decision. - The 2011 revision of the B1/B2 promotion policy: - The unification of B1/B2 promotion criteria across career streams was not established to be arbitrary or discriminatory; the policy decision was based on proper consideration of relevant facts and reasonably related to its objectives. - The differential effect on economists versus SCS staff from the change in TIG required to reach B2 eligibility was directly related to the policy’s purpose and was rationally based and the product of consultations. - However, the Fund’s implementation of a “transitional measure” excluding Applicant—because her promotion to B1 became effective in the period May 1–July 1, 2011—was arbitrary. The Fund failed to articulate a rational and sufficient nexus between the transitional measure’s purpose (protecting expectations of staff promoted to B1 before July 2011) and the cut-off it applied. - Procedural and systemic challenges: - The Tribunal found no ground to give the record of the administrative review and Grievance Committee processes less than their usual weight. - Systemic issues relating to the Fund’s dispute resolution system are for the Fund’s policy-making organs to consider to ensure integrity of the system. ### Tribunal observations on language and access to remedies - The Tribunal expressed concern about the Fund’s briefs’ language suggesting Applicant’s claims were “self-serving” and that Applicant pursued a “vendetta,” recalling similar complaints in prior cases. - The Tribunal encouraged courteous and respectful pleadings and emphasized: - The Fund has multiple avenues for addressing alleged misconduct; access to one does not preclude another. - Exercising the right to review administrative acts through the Fund’s channels, up to and including Tribunal review, is a fundamental right of international civil servants and is not to be equated with pursuing a “vendetta,” except in exceptional circumstances dealt with by Article XV. - Disparagement of rightful recourse to the Fund’s dispute resolution procedures will not be countenanced by the Tribunal. - Article XV, Section 1 was recalled as providing the Tribunal power to order compensation by an applicant to the Fund if the application was manifestly without foundation or intended to delay or harass. ### Remedies framework and categories of remedial authority - The Tribunal’s remedial authority derives from Article XIV, Section 1: if an application challenging the legality of an individual decision is well-founded, the Tribunal shall prescribe rescission of such decision and all other measures, whether monetary or otherwise, required to correct the effects of that decision. - The Tribunal’s remedial powers fall broadly into three categories: - (i) Rescission of a contested decision, together with measures (monetary compensation or specific performance) to correct effects of the rescinded decision. - (ii) Compensation for intangible injury to correct effects of procedural failure in taking a sustainable decision. - (iii) Compensation to correct effects of intangible injury consequent to the Fund’s failure to act in accordance with its legal obligations where there may be no decision to rescind. - The Tribunal routinely awards compensation for “intangible injury” where the Fund fails to observe legal obligations that adversely affect a staff member; intangible injury responds to legitimate expectations that the Fund will act in accordance with the rule of law. - In assessing quantum for intangible injury, the Tribunal identifies the injury, assesses its nature and severity, and gives weight to factors that aggravate or mitigate harm. ### Remedy for the hostile work environment and factors for compensation - The Tribunal found that the actionable claim is the Fund’s failure to act effectively in response to a pattern of unfair treatment constituting a hostile work environment; redress takes the form of compensation for the consequent intangible injury. - The Tribunal characterized the hostile work environment as a serious injury warranting significant compensation because: - It harmed Applicant’s sense of wellbeing. - It was antithetical to Fund principles protecting employees from harassment, discrimination and retaliation. - Applicant’s claimed losses and requested remedy: - Applicant seeks monetary compensation for a “pattern of discrimination that held back [her] career for several years, thus denying [her] . . . an unknown number of forgone career opportunities” and for “suffering harassment, including sexual harassment, for bias against diversity (gender in [her] case), and for procedural flaws.” - Applicant invoked the Tribunal’s remedy in Mr. “F”, requesting “$100,000 in line with the Tribunal award to Mr. ‘F’, plus any additional sum the Tribunal may consider fitting...” - In Mr. “F”, the Tribunal awarded $100,000 in total for failures to take effective measures in response to religious intolerance and workplace harassment and to give reasonable notice of abolition of post. - Salient factors the Tribunal will consider in assessing nature and severity of intangible injury in this case: - (i) The hostile work environment arose directly from conduct of a senior official of the Fund; senior managers bear substantial responsibility under internal law to ensure a workplace free of unfair treatment; responsibility inheres in abuse of senior managerial authority. - (ii) The Department Director placed an unfair brake on Applicant’s opportunities for career advancement by impeding her advancement to the B List and discouraging her application to vacancies under his supervision. - (iii) Inappropriate comments were made when Applicant sought performance feedback; Fund internal law requires feedback be given free of bias and in a “reasonable and constructive manner” (Harassment Policy, para. 14). - (iv) When Applicant confronted the Department Director about career progression, his response implicitly denied unfair treatment and placed the onus on her to be more “charming.” - (v) Applicant reasonably felt intimidation in challenging the Department Director and initially pursued informal channels rather than formal recourse procedures. - (vi) Applicant sought assistance (including from the HRD Director) but the situation was not fully addressed. - (vii) The hostile work environment endured over a significant period of time. *International Monetary Fund Administrative Tribunal judgment.* ### 455. The Tribunal has also concluded that Applicant reasonably perceived the Department ### 455. The Tribunal has also concluded that Applicant reasonably perceived the Department ### Tribunal findings on perceptions, gender, and hostile work environment - The Tribunal concluded that Applicant reasonably perceived the Department Director’s comments as: - failing to address seriously her concerns about her career development; and - taking impermissible account of her gender in responding to these concerns. - The Tribunal found that remarks advising Applicant to alter her purported manner of communications with colleagues were: - related to the fact of Applicant’s gender; - related to perceptions about gender roles; and - related to her willingness to challenge past misconduct relating to unfair treatment of women raised on behalf of her subordinate staff members. - Having raised these complaints, Applicant became especially vulnerable to her Department Director’s unfair treatment. - The Tribunal did not conclude that Applicant had established a case of sexual harassment or of retaliation. - The Tribunal did not find that Applicant was unfairly denied specific job opportunities. ### Compensation for hostile work environment - The Tribunal set compensation to correct the effects of the Fund’s failure to respond effectively to a pattern of unfair treatment constituting a hostile work environment at $60,000. ### Remedy for failure to afford transitional measure under the B1/B2 promotion policy revision - The Tribunal found Applicant succeeded on the claim that the Fund unfairly denied her the benefit of the transitional measure in implementing the B1/B2 promotion policy of July 2011. - The Tribunal rescinded the individual decision, taken pursuant to the regulatory decision, that no exception would be made to the application of the revised promotion policy in Applicant’s circumstances. - The Tribunal considered the nature and severity of intangible injury and any aggravating or mitigating factors in setting compensation. - The Tribunal identified the injury as two-fold: - failure to uphold a staff member’s legitimate expectation that decisions will be taken consistently with legal obligations; and - the particular obligation breached and its consequences. - Consequence of the failure: Applicant was not considered for promotion at the November 1, 2012 round and had to wait until November 1, 2013 to become eligible for such consideration. - The Tribunal could not determine what the outcome would have been had Applicant been considered eligible in 2012. - The Tribunal found no basis to conclude the Fund acted in bad faith or with malice in taking the rescinded individual decision. - The Tribunal regarded the material consequences (delayed eligibility) as not especially severe. - The Tribunal set compensation for the Fund’s failure to afford Applicant the benefit of the transitional measure at $10,000. ### Applicant’s request for monetary relief on a net-of-tax basis - Applicant requested that monetary relief be awarded on a net-of-tax basis, referring to the Fund’s policy of providing a tax allowance to staff members when income from the Fund must be included in taxable income under local law. - Respondent did not comment on Applicant’s request in its pleadings. - The Tribunal has not adopted a practice of stating compensation is on a net-of-tax basis and considers it for the Fund to decide whether (and how) to adjust any tax allowance in light of the Tribunal’s award. - The Tribunal denied Applicant’s request that it prescribe the monetary relief be made on a net-of-tax basis. ### Applicant’s request for compensation for imputed cost of self-representation - Article XIV, Section 4, of the Statute provides that the Tribunal may order reasonable costs incurred by the applicant, including the cost of applicant's counsel, to be borne by the Fund. - Applicant sought compensation for the “imputed cost” of her time representing herself and preparing the case, but provided no quantification or documentation. - Respondent did not comment on Applicant’s request in its pleadings. - The Tribunal reviewed precedent (Ms. “M” and Dr. “M”, IMFAT Order No. 2007-1) where an attorney-applicant’s forgone remunerative work was considered a cost incurred. - The Tribunal distinguished that precedent from the present case: Applicant is a non-attorney and has not established any out-of-pocket expenses. - The Tribunal found no ground to conclude a non-attorney applicant’s time preparing her own case constitutes a compensable cost under Article XIV, Section 4. - The Tribunal denied Applicant’s request for compensation for the imputed cost of her time. ### Final decision points (Tribunal orders and determinations) - The Administrative Tribunal of the International Monetary Fund unanimously decides: 1. Ms. “GG” was subject to a pattern of unfair treatment constituting a hostile work environment to which the Fund failed effectively to respond. For that breach, the Fund shall pay Ms. “GG” compensation in the sum of $60,000. 2. The regulatory decision announced on July 1, 2011, increasing from 12 months to 18 months the time-in-grade required before Grade B1 economists become eligible for promotion to Grade B2, is sustained. 3. The individual decision, taken on the basis of the above regulatory decision, to deny Ms. “GG” the benefit of the transitional measure included in the revised promotion policy is rescinded. To correct the effects of the rescinded individual decision, the Fund shall pay Ms. “GG” compensation in the sum of $10,000. 4. Ms. “GG”’s challenges to the non-selection decisions of 2009, 2010, and 2011 and to her FY2009 APR decision are dismissed as inadmissible. 5. Ms. “GG”’s challenge to her FY2010 APR decision is denied on the merits. 6. Ms. “GG”’s challenges to elements of the administrative review and Grievance Committee processes are denied. 7. Ms. “GG”’s request that she be compensated for the imputed cost of her time spent preparing her case before the Tribunal and through the channels of administrative review is denied. --- _Source: https://www.imf.org/-/media/files/imfat/j2015-3.pdf_