## j2016-2

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### Case overview and procedural history
- Tribunal: Administrative Tribunal of the International Monetary Fund, composed 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.
- Hearing dates: May 24 and 25, 2016.
- Parties: Mr. “KK”, Applicant; International Monetary Fund, Respondent.
- Counsel: Applicant represented by Mr. Peter C. Hansen. Respondent represented by Ms. Diana Benoit, Mr. Brian Patterson, and Ms. Juliet Johnson.
- Application filed: September 30, 2015; transmitted to Respondent on October 2, 2015.
- Procedural milestones (preserved verbatim):
  - Tribunal denied provisional relief on November 13, 2015 (IMFAT Order No. 2015-1).
  - Respondent’s Answer filed November 16, 2015.
  - Applicant’s Reply filed December 18, 2015.
  - Fund’s Rejoinder filed January 20, 2015.
  - President requested Additional Written Statement on January 27, 2016; Applicant filed Additional Written Statement on February 16, 2016.

### Subject of the dispute and relief sought
- Subject: Challenge to Annual Performance Review (APR) decisions for FY2012 and FY2013.
- Applicant’s central allegations regarding APR process:
  - Assessment improperly motivated by harassment and retaliation.
  - Work not evaluated in a fair and balanced manner, including being held to unreasonable standards and disfavoring the type of work to which Applicant was assigned and had expertise.
  - APR ratings unfairly affected by application of the Fund’s policy limiting the number of staff members eligible for ratings above the “Effective” level.
- Relief sought by Applicant:
  - Rescission and removal of contested APR decisions for FY2012 and FY2013.
  - Monetary compensation for “many, repeated and severe infringements of [his] rights in connection with his APRs for FY12 and FY13, including harassment and retaliation.”
  - Legal fees and costs under Article XIV, Section 4 of the Statute, if Application found well-founded in whole or in part.

### Respondent’s principal contentions
- APR decisions reflect fair and balanced assessments by multiple managers identifying consistent strengths and weaknesses.
- Denies work was unfairly evaluated due to assignment type or expertise.
- Denies rating system unfairness or that workload exceeded medical restrictions.
- Characterizes Division Chief’s conduct as a few “outbursts” that did not amount to impermissible harassment; asserts APR decisions could not be attributed to that manager.
- Argues complaints about Grievance Committee fall outside the Tribunal’s jurisdictional competence.

### Key factual allegations by Applicant
- Alleged harassment incidents in 2011 on April 27, June 3, and late December 2011 involving raised voice and conduct perceived as physically threatening.
- Alleged similar conduct toward another staff member in 2013.
- Alleged retaliation including October 31, 2012 interoffice email referring to Applicant as “my always reliable and non-grieving colleague.”
- Health-related claim: supervisors failed to manage workload in accordance with HSD recommendation to “work to a 40 hour week for a period of 3 months,” later renewed “for an indefinite term.”
- Grievance process claims: elements of the Grievance Committee’s consideration represented failures of fair process.

### Grievance Committee findings (summary)
- Found Applicant did not prove the three 2011 shouting episodes:
  - rose to the level of compensable harassment; or
  - created a hostile work environment.
- Found Division Chief’s conduct “crossed a line from mere disagreeableness to unacceptable anger and shouting,” and described it as “unacceptable for a Fund supervisor.”
- Found conduct did not so adversely affect Applicant’s ability to work that he was unable to rise above an Effective performance rating in FY2012.
- Found Division Chief “played virtually no role” in FY2013 rating and no hostile work environment during that rating year.
- Characterized October 31, 2012 email as “inexcusable” and “inconsistent with the Fund’s retaliation policy.”
- Found Applicant had not presented sufficient evidence that supervisors failed to respect the medical restriction on his hours of work.
- Recommended that Applicant’s Grievances be denied (Grievance Committee Report and Recommendation (May 1, 2015)); Fund Management accepted recommendation on June 30, 2015.

### Confidentiality of Ethics investigations and Tribunal’s treatment
- Ethics Office reports are "maintained as confidential, except on a need-to-know basis," which "precludes the complainant from having access to the reports." (para. 67)
- Precedent in Ms. “GG” (No. 2) limits reliance on Ethics findings because:
  - (i) Tribunal’s duty to assess independently whether a decision transgressed Fund law;
  - (ii) confidential nature of investigatory process and withholding of reports from complainant; and
  - (iii) requirement that conclusions be based on evidence tested through an adversary process.
- Tribunal stated: "in the absence of a compelling reason, the Tribunal will not ordinarily have a basis for taking account of the findings of Ethics investigations." (para. 68)
- Tribunal declined Applicant’s request for production of Ethics-process documents relating to the Division Chief, including any HRD Director decision; because the Tribunal denied production, Article X, Section 1 did not permit drawing inferences as to the contents of requested documents. (paras. 28–32)

### Oral proceedings and witness testimony — standard and case outcome
- Legal framework:
  - Article XII: Tribunal shall "decide in each case whether oral proceedings are warranted."
  - Rule XIII, para. 1: oral proceedings if Tribunal deems such proceedings useful.
  - Rule XIII, para. 6 permits limiting oral proceedings to counsel when written evidentiary record is adequate.
- Procedural history:
  - Applicant requested hearing and to appear in person; clarified request sought both witness testimony and oral argument by counsel (May 10, 2016).
  - Respondent opposed oral proceedings, citing Grievance Committee record.
- Tribunal decisions:
  - Denied Applicant’s request to appear as a witness; found Grievance Committee testimony and written record made his testimony “not useful.” (para. 40)
  - Denied requests to call SPM, Department Director, and a medical treatment provider as witnesses where proffers indicated testimony "would not be probative of the issues." (para. 41)
  - Held oral proceedings limited to counsel under Rule XIII, para. 6; oral proceedings were "held in private" and occurred on May 25, 2016. Tribunal found oral proceedings useful in clarifying legal issues. (paras. 43–44)

### Tribunal findings on alleged harassment incidents (2011) and supervisory response
- April 27, 2011:
  - Applicant declined a Division meeting; alleges Division Chief "growl[ed]" and came "right in [Applicant’s] face." Applicant reported being "shaking," "fearful," with "head ... swimming" and "stomach ... woozy." (Tr. 809–812)
  - Division Chief conceded raised voices but denied encroaching on physical space. (Tr. 294–295)
- June 3, 2011:
  - Confrontation over CWS day; Applicant alleged Division Chief "stood up and put his hands on the desk and hovered above [Applicant]." Applicant felt "less like [the Division Chief] was going to hit [him] because there was a desk between [them]." (Tr. 818–819)
  - Division Chief likely raised voice but denied physically threatening gestures. (Tr. 299)
- Late December 2011:
  - Applicant alleged Division Chief walked towards him in a manner perceived as threatening when Applicant wished to leave after 6 p.m. (Tr. 825–830)
  - Division Chief testified he had raised his voice because Applicant was discourteous but denied physical threat. (Tr. 300–303)
- June 6, 2011 meeting with SPM:
  - Applicant reported workload concerns, fear of Division Chief, and that he was "undergoing medical treatment for health problems caused by his overly stressful work environment."
  - SPM’s account: Applicant expressed workload concerns and appeared “very sad,” discussed mobility opportunity which Applicant declined, and did not recall Applicant reporting he felt “physically threatened.” (Tr. 57–63; Tr. 1252; Tr. 820)
- Management actions taken:
  - Early 2012: Deputy Division Chief assumed direct supervision of Applicant "to 'take personality differences off the table'." (Tr. 486)
  - Summer 2012: Applicant began additionally reporting to a second manager.
  - December 2012: Applicant formally transferred to the unit headed by the other supervisor.
  - Tribunal concluded managers recognized problems and took effective action to distance Applicant from the Division Chief and pursue mobility options.

### Tribunal assessment of causal link between alleged hostility and APR decisions
- Legal standard: to show abuse of discretion on improper motive ground, applicant must show a “causal link” between the alleged improper motive and the contested decision.
- FY2012:
  - Deputy Division Chief and Division Chief collaborated on drafting the APR narrative; both indicated they were of like mind as to the “Effective” rating. (Tr. 134, 306)
- FY2013:
  - Applicant had transferred to a new supervisor; FY2013 process originated with the then-head of Applicant’s unit; Deputy Division Chief prepared a contribution and Division Chief’s reply was: “Looks good, please go ahead and share as indicated.”
  - Tribunal found FY2013 APR was a collaborative undertaking of multiple decision makers and that Division Chief played limited role.
- Tribunal conclusion: Applicant did not meet burden of showing a causal link between alleged hostility by Division Chief and the FY2012 and FY2013 APR outcomes.

### Tribunal assessment of reasonableness of FY2012 and FY2013 APR decisions
- Governing APR Guidelines (FY2013 Guidelines applied to FY2012 and FY2013) — preserved elements:
  - Emphasis on staff development, achievement of objectives, and accountability.
  - Managers required to add at least one managerial objective and identify comparative strengths (normally, two to three competencies) and at least one comparative development area.
  - Relative performance levels determination should be based on: (i) overall contributions against objectives and other assignments during the APR review period; (ii) key strengths and development areas displayed based on the Fund competencies; (iii) impact of contributions to the department and/or the Fund; (iv) complexity of work assignments relative to level; (v) workload; (vi) performance relative to peers.
- Distribution rules excerpted:
  - FY 2013 Distribution Ranges for A1—B3 Staff (In percent):
    - Level 1 (Outstanding): Up to 15
    - Level 2 (Superior): Up to 15
    - Level 3 (Effective): [distribution range not printed in supplied excerpt]
  - At least 70 percent of staff to be rated “Effective” given top two categories reserved for not more than 15 percent each.
- Evidence supporting “Effective” ratings:
  - Deputy Division Chief assessed Applicant as “in the bottom half” of the “Effective” category and stated there “wasn’t even ... a close discussion around the margin between effective and superior.” (Tr. 145)
  - SPM regarded performance as “[a]t the lower end” of the “Effective” group. (Tr. 105)
  - Division Chief: “no question whatsoever that [Applicant] was effective, but absolutely nothing more than that effective in that year.” (Tr. 337)
  - Unit head for late 2012/early 2013 would have assessed Applicant “on an absolute basis” as “Effective” and expected “more independence” for a higher rating. (Tr. 623; Tr. 626–628)
- Tribunal conclusion:
  - There was a reasonable and observable basis for Applicant’s “Effective” ratings for FY2012 and FY2013.
  - Narrative comments reflected input of multiple reviewers and did not show indicia of irrationality or arbitrariness.
  - Tribunal denied claim that departmental distribution rules unfairly disadvantaged Applicant.

### Tribunal findings on alleged unfair evaluation standards and peer-comparison issues
- Applicant’s claims:
  - Held to a standard of “absolute perfection.”
  - Managers disfavored his type of work and lacked comparable peers.
  - A few errors had disproportionate effect on his evaluation.
- Tribunal findings:
  - Nature of Applicant’s work may have made accuracy more salient, but tailoring assessment criteria to work nature is a core managerial responsibility.
  - Tribunal will respect managerial discretion over weighting of assessment areas provided overall evaluation is fair and balanced.
  - Applicant did not produce evidence he was unfairly held to a standard of perfection.
  - Applicant did not show his skill set or responsibilities were disfavored or unfairly compared.

### HSD medical recommendation, implementation, and Tribunal’s assessment
- HSD timeline and content (preserved verbatim):
  - August 29, 2012: HSD endorsed treating physicians’ recommendation to “work to a 40 hour week for a period of 3 months.”
  - December 2012: recommended Applicant “should continue [to] work to a 40 hour week” and renewed the modified schedule “for an indefinite term.”
  - March 2013: HSD note to next supervisor reiterated the 40 hour week.
  - After a six‑week medical leave, Applicant was cleared to participate in the CWS: “By definition as long as [Applicant] continues with the CWS work schedule as defined (80 hours over 2 weeks), he can resume his respective duties.”
- Managerial responses:
  - Division Chief responded: “We will of course make the necessary accommodations.” Division Chief forwarded recommendation to Applicant’s principal supervisor.
  - Division Chief’s accommodation method: assigning off portfolio work or postponing it. (Tr. 395)
  - Division Chief acknowledged lack of time sheets and relied on Applicant to report if he risked exceeding 40 hours. (Tr. 395)
  - SPM testified managers periodically discussed the restriction to “make absolutely sure that this was abided by.” (Tr. 1267–1268)
- Tribunal conclusions:
  - Record does not support finding that Fund failed to fulfill duties arising from HSD’s recommendation.
  - Managers attempted to coordinate Applicant’s workload and communicated about implementation.
  - Applicant did not present time records nor report substantive deviations from the 40‑hour limitation; Tribunal found no prevailing claim that the Fund failed its duty under HSD’s recommendation.
  - Tribunal was troubled that the Fund had not identified any written protocol for handling HSD-advised restrictions and noted absence of a transparent policy could create difficulties; referenced that the World Bank codified a “reasonable accommodation” standard in its written internal law.

### Tribunal’s assessment of Grievance Committee process issues and jurisdiction
- Applicant challenged Grievance Committee rulings on:
  - Denial of production of Ethics process results.
  - Rulings on questioning SPM as to alleged “coaching.”
  - Seeking of medical records during liability phase.
- Tribunal practice and rulings:
  - Will not entertain challenges to Grievance Committee decisions as to production of documents and admissibility of evidence when those decisions are not “administrative acts” within Article II of the Tribunal’s Statute.
  - May order production of evidence in its own forum to rectify lapses in the Grievance Committee’s evidentiary record, but in this case denied Applicant’s production requests.
  - Confirmed it will not revisit the Grievance Committee’s evidentiary decisions and found no ground to give less than the usual weight to the Grievance Committee proceedings.

### Tribunal’s overall conclusions and disposition
- The Tribunal concluded:
  - Applicant did not establish that the FY2012 and FY2013 APR decisions were:
    - arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.
  - Applicant did not establish a causal link between alleged Division Chief hostility and the APR outcomes.
  - Applicant did not show the Fund failed to respond effectively to workplace complaints or to fulfill duties arising from HSD’s recommendation.
  - Applicant raised no ground to give less than usual weight to the Grievance Committee record.
- Procedural note: Applicant filed a Revised Request for Costs on July 19, 2016; President decided no exceptional circumstances to admit Revised Request for Costs given denial of the Application.
- Decision: The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Mr. “KK” is denied.
- Decision dated: September 21, 2016.

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2016-2.*

### INTRODUCTION ...........................................................................................................

### INTRODUCTION

### Case overview
- Tribunal: Administrative Tribunal of the International Monetary Fund, composed 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.
- Hearing dates: May 24 and 25, 2016.
- Parties: Mr. “KK”, Applicant; International Monetary Fund, Respondent.
- Counsel: Applicant represented by Mr. Peter C. Hansen, Law Offices of Peter C. Hansen, LLC. Respondent represented by Ms. Diana Benoit and Mr. Brian Patterson, Senior Counsels, and Ms. Juliet Johnson, Counsel, IMF Legal Department.
- Application filed: September 30, 2015; transmitted to Respondent on October 2, 2015.
- Procedural milestones:
  - Tribunal denied provisional relief on November 13, 2015 (IMFAT Order No. 2015-1).
  - Respondent’s Answer filed November 16, 2015.
  - Applicant’s Reply filed December 18, 2015.
  - Fund’s Rejoinder filed January 20, 2015.
  - President requested Additional Written Statement on January 27, 2016; Applicant filed Additional Written Statement on February 16, 2016.

### Subject of the dispute
- Applicant challenges his Annual Performance Review (APR) decisions for FY2012 and FY2013.
- Applicant’s central allegations regarding APR process:
  - Assessment improperly motivated by harassment and retaliation.
  - Work not evaluated in a fair and balanced manner, including being held to unreasonable standards and disfavoring the type of work to which Applicant was assigned and had expertise.
  - APR ratings unfairly affected by application of the Fund’s policy limiting the number of staff members eligible for ratings above the “Effective” level.

### Applicant’s factual and procedural allegations
- Alleged harassment by Division Chief:
  - Incidents in April, June, and December 2011 allegedly involving raised voice and movement perceived as physically threatening.
  - Applicant alleges intimidation and fear for his physical safety.
  - Allegation that Division Chief engaged in similar conduct towards another staff member in 2013.
  - Alleged retaliation including an October 31, 2012 interoffice email referring to Applicant as “my always reliable and non-grieving colleague.”
- Health-related claims:
  - Applicant contends supervisors failed to manage workload in accordance with a medical restriction communicated by the Joint Bank/Fund Health Services Department (HSD) to limit Applicant’s workweek to 40 hours.
- Grievance process claims:
  - Applicant contends elements of the Grievance Committee’s consideration represented failures of fair process.

### Relief sought by Applicant
- Rescission and removal of contested APR decisions for FY2012 and FY2013.
- Monetary compensation for “many, repeated and severe infringements of [his] rights in connection with his APRs for FY12 and FY13, including harassment and retaliation.”
- Legal fees and costs under Article XIV, Section 4 of the Statute, if Application found well-founded in whole or in part.

### Respondent’s principal contentions
- APR decisions for FY2012 and FY2013 reflect fair and balanced assessments by multiple managers identifying consistent strengths and weaknesses and putting Applicant on notice of improvement areas.
- Denies that Applicant’s work was unfairly evaluated due to assignment type or expertise.
- Denies that the rating system was unfair or that workload exceeded medical restrictions; maintains it acted promptly and effectively to address complaints, including removing Applicant from direct supervision of the Division Chief.
- Characterizes the Division Chief’s conduct as a few “outbursts” that did not amount to impermissible harassment and asserts APR decisions could not be attributed to that manager.
- Argues complaints about the Grievance Committee fall outside the Tribunal’s jurisdictional competence and are without merit.

### Anonymity request and decision
- Applicant sought anonymity under Rule XXII of the Tribunal’s Rules of Procedure due to allegations of managerial misconduct, health conditions, and medical restrictions relevant to the APR challenges.
- Respondent did not oppose anonymity; favored it to protect “the reputations of numerous Fund managers” and to support confidentiality of supervisory feedback.
- Tribunal’s jurisprudence cited in support: Ms. “AA” (IMFAT Judgment No. 2006-5), Mr. “HH” (IMFAT Judgment No. 2013-4), Ms. “GG” (No. 2), and Mr. “DD” (IMFAT Judgment No. 2007-8).
- Tribunal granted Applicant’s request for anonymity.

### Applicant’s requests for production of documents (Ethics materials)
- Applicant requested production under Article X of the Statute and Rule XVII of:
  - (i) “Any Ethics reports concerning [the Division Chief’s] behavior, or summaries of their findings and conclusions,” and
  - (ii) “Any and all decisions by the HRD Director concerning [the Division Chief] in connection with the aforementioned Ethics processes.”
- Relevant procedural and factual points:
  - Applicant filed Ethics complaints on March 6, 2013 and amended complaint on May 6, 2013.
  - Applicant asserts he was “orally” informed that Fund had found [the Division Chief] guilty of unspecified misconduct; Fund does not concede having so informed Applicant and maintains it has never admitted or publicized findings in respect of those Ethics complaints.
  - Applicant’s position: if Fund found misconduct but denies it in adjudicative proceedings, that should be held against the Fund for purposes of moral damages and costs and to avoid forcing aggrieved staff to re-prove established facts.
- Respondent’s position on non-disclosure:
  - Asserts disclosure is not authorized under Fund law and would abridge the policy of the Ethics Advisor in effect at the time.
  - Cites GAO No. 33 and GAO No. 35, Section 3.08: Report of Investigation considered “strictly confidential” and disclosure limited to those with a “strict need to know.”
  - Argues disclosure would chill candor of witnesses and undermine institutional design separating ethics and grievance processes.
  - Relies on Tribunal’s analysis in Ms. “GG” (No. 2) noting the Ethics process is “manifestly not final” and that Ethics findings cannot be accepted by the Tribunal as dispositive of the factual and legal issues regarding whether alleged misconduct affected employment decisions such as performance ratings.

### Key legal and adjudicative issues identified for consideration
- Whether the Fund abused its discretion in taking Applicant’s FY2012 and FY2013 APR decisions:
  - Standard of review governing APR challenges.
  - Whether APR decisions were improperly motivated by harassment or retaliation:
    - Whether Applicant established a causal link between Division Chief’s alleged hostility and APR decisions.
    - Whether there was a reasonable and observable basis for the APR decisions.
    - Tribunal’s conclusions on improper motive allegations.
  - Whether the Fund failed to evaluate Applicant’s work in a fair and balanced manner:
    - Whether Applicant was held to unreasonable standards others were not.
    - Whether assessment was improperly affected by managers’ bias against the type of work assigned.
  - Whether ratings were unfairly affected by Fund’s policy limiting number of staff eligible for ratings above “Effective.”
- Whether the Fund failed to respond effectively to Applicant’s complaints about working conditions.
- Whether the Fund failed to fulfill duties arising from HSD’s recommendation to modify Applicant’s work schedule due to a health condition.
- Whether elements of the Grievance Committee’s consideration represented failures of fair process.

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2016-2.*

### 26. The Tribunal also noted that a feature of the Ethics process in the Fund is that “reports

### j2016-2 - 26. The Tribunal also noted that a feature of the Ethics process in the Fund is that “reports

### Confidentiality of Ethics investigations and weight the Tribunal gives them
- The Tribunal noted that Ethics Office reports are "maintained as confidential, except on a need-to-know basis," and that this "precludes the complainant from having access to the reports." Id., para. 67.
- In Ms. “GG” (No. 2) the Fund had informed the applicant of the "result" of the investigation; the Tribunal nonetheless set limits on reliance on Ethics findings.
- Key Tribunal findings in Ms. “GG” (No. 2) (paras. 68–70):
  - The weight the Tribunal may give to Ethics Office findings is limited by:
    - (i) its duty to assess independently the claims to determine whether a decision transgressed Fund law (Commentary on the Statute, p. 13);
    - (ii) the confidential nature of the investigatory process and withholding of investigation reports from the complaining party; and
    - (iii) the requirement that the Tribunal draw 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." Id., para. 68.
  - The Tribunal concluded it "would not be appropriate to give weight to the findings made by the Ethics Office in response to Applicant’s complaints." Id., para. 69.
  - The Tribunal granted the applicant’s request to strike redacted Ethics Reports from the record but took notice that Ethics investigations had been undertaken and completed where the Respondent had cited the Ethics inquiry. Id., para. 70.

### Application of Ms. “GG” (No. 2) precedent to document-production requests in the instant case
- The Tribunal concluded Ms. “GG” (No. 2) governs the present request for production of Ethics-process documents and reaffirmed that "in the absence of a compelling reason, the Tribunal will not ordinarily have a basis for taking account of the findings of Ethics investigations." Id., para. 68.
- The Tribunal denied Applicant’s requests for production of documents emanating from the Ethics process relating to his Division Chief, including any decision by the HRD Director in connection with that process. (See para. 28.)
- Article X, Section 1 (Tribunal may require production of documents; Managing Director may withhold if disclosure might hinder operation of the Fund because of secret or confidential nature) was discussed:
  - The Commentary on the Statute (p. 32) explains that if the Managing Director withholds a document, the applicant's assertion concerning withheld contents is prima facie evidence and creates a rebuttable presumption unless other probative evidence contradicts it.
  - The Tribunal held Article X, Section 1 applies only where the Tribunal orders production and the Fund declines to produce; because the Tribunal denied the production requests here, Article X, Section 1 did not permit drawing inferences as to the contents of requested documents. (See paras. 29–32.)

### Request for oral proceedings — legal standard and Tribunal practice
- 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 ... the Tribunal deems such proceedings useful."
  - Rule XIII, para. 6 permits limiting oral proceedings to oral arguments of parties and their counsel where the written evidentiary record is adequate.
- Procedural history:
  - Applicant requested a hearing and to appear in person; clarification filed May 10, 2016 seeking both witness testimony and oral argument by counsel; Fund responded May 13, 2016 opposing oral proceedings.
  - Respondent argued a comprehensive testimonial and documentary record from the Grievance Committee made further oral proceedings unnecessary and "a waste of time and resources."
- Tribunal practice and precedent:
  - The Tribunal revised Rules in 2004 moving the standard from "necessary" to "useful" to make oral proceedings more likely (Niebuhr, IMFAT Judgment No. 2013-1, paras. 29–30).
  - The Tribunal has found advantages to holding oral proceedings, particularly when requested by an applicant, but will consider sufficiency of the written record (Ms. “GG” (No. 2), para. 48).
  - Where the record from Grievance Committee proceedings exists, the Tribunal frequently weighs that transcript as part of the evidence (Mr. M. D’Aoust, IMFAT Judgment No. 1996-1, para. 17).

### Tribunal’s decisions on witness testimony and oral proceedings in this case
- Witness testimony:
  - The Tribunal denied Applicant’s request to appear as a witness, concluding Applicant’s Grievance Committee testimony and the written record made his testimony before the Tribunal "not useful." (See para. 40.)
  - The Tribunal denied requests to call as witnesses:
    - the SPM (who had testified before the Grievance Committee), where additional testimony on alleged "coaching" was not considered material; and
    - the Department Director and a medical treatment provider, because the proffers indicated such testimony "would not be probative of the issues of the case." (See para. 41.)
  - The Tribunal noted that, given the Fund’s dispute resolution structure and the exhaustion requirement of Article V, Section 1, "it will be rare for the Tribunal to admit witness testimony in cases arising through the Grievance Committee" absent a showing of usefulness to clarify a material point. (See para. 42.)
- Oral proceedings limited to counsel:
  - Although witness testimony was denied, the Tribunal decided to hold oral proceedings limited to the legal arguments of the parties’ counsel, in light of Rule XIII, para. 6 and the recognized benefit of oral argument even when the evidentiary record is complete. (See para. 43.)
  - Proceedings were ordered to be "held in private" under Article XII and Rule XIII, para. 1 because the Tribunal determined "matters of personal privacy" were at issue. (See para. 43.)
  - Oral proceedings were held on May 25, 2016; each party had a fixed period for counsel’s presentation followed by questioning by the Tribunal. The Tribunal found the oral proceedings useful in clarifying legal issues and probing disputes of fact to enhance appreciation of the record. (See para. 44.)

### Factual background — alleged harassment incidents in 2011 (key facts)
- Applicant identified three incidents in 2011: April 27, 2011; June 3, 2011; and late December 2011, in which the Division Chief allegedly displayed extreme anger and behaved in a manner Applicant perceived as physically threatening. (See para. 46.)
- April 27, 2011 incident:
  - Applicant declined to attend a Division meeting due to a scheduling conflict; Division Chief allegedly "growl[ed]" and came "right in [Applicant’s] face." (Tr. 809–811; paras. 47–48.)
  - Applicant reported being "shaking," "fearful," with "head ... swimming" and "stomach ... woozy." (Tr. 812.)
  - Division Chief conceded raised voices but denied encroaching on physical space or making threatening gestures. (Tr. 294–295.)
- June 3, 2011 incident:
  - Confrontation related to deferral of Applicant’s Compressed Work Schedule (CWS) day; Division Chief allegedly "stood up and put his hands on the desk and hovered above [Applicant]." Applicant felt "less like [the Division Chief] was going to hit [him] because there was a desk between [them]." (Tr. 818–819; paras. 49–50.)
  - Division Chief acknowledged likely raised voice but denied physically threatening gestures. (Tr. 299.)
- Late December 2011 incident:
  - Applicant arrived early and wished to leave after 6 p.m.; Division Chief allegedly insisted on a meeting and walked towards Applicant in a manner perceived as threatening. (Tr. 825–830; para. 51.)
  - Division Chief testified he had raised his voice because he considered Applicant discourteous but denied any physical threat. (Tr. 300–303; para. 52.)

*Source: Administrative Tribunal of the International Monetary Fund (judgment j2016-2).*

### 53. Following the CWS incident of June 3, 2011, Applicant sought out a meeting with his

### j2016-2 - 53. Following the CWS incident of June 3, 2011, Applicant sought out a meeting with his

### Meeting with SPM (June 6, 2011)
- Meeting occurred on the next business day, June 6, 2011.
- Applicant recounted events of April 27 and June 3, 2011; he:
  - “requested [the SPM]’s help with managing his crushing workload; . . . voiced concerns that his workplace situation was setting him up for failure; and . . . explained his ongoing fear of [the Division Chief].”
  - stated he was “undergoing medical treatment for health problems caused by his overly stressful work environment.”
  - says the SPM promised to “look into his situation, monitor his workload, support a mobility assignment and get back to him,” but thereafter provided no assistance according to Applicant.
- SPM’s account:
  - confirmed Applicant expressed concerns about workload (Tr. 57-58) and appeared “very sad” (Tr. 59).
  - discussed an opportunity in another unit, which Applicant declined (Tr. 60).
  - disputed that Applicant reported feeling “threatened and [was] worried for [his] safety” (Tr. 820), testifying instead that Applicant described the Division Chief as “disrespectful, . . . had raised his voice [and] . . . wasn’t considerate of [Applicant’s] feelings.” (Tr. 1252)

### Changes in reporting relationships (2011–2013)
- Early 2012: Deputy Division Chief (joined summer 2011) took over direct supervision of Applicant; Division Chief characterized this as removing “bad chemistry” and clarifying performance questions (Tr. 305; Tr. 486).
- Summer 2012: Applicant began additionally reporting to a second manager in a separate unit.
- October–December 2012:
  - Tensions with Division Chief heightened in October 2012.
  - SPM met Applicant on October 24, 2012 to discuss mobility prospects.
  - SPM and Department Director met Applicant on November 19, 2012 to offer a “new environment.”
  - Result: Applicant formally transferred in December 2012 to the unit headed by the other supervisor.
- First quarter 2013: another individual became head of Applicant’s unit.
- Late 2013: Applicant transferred to an assignment in another part of the Fund (Tr. 740-741).

### Applicant’s FY2012 APR (May 1, 2011–April 30, 2012)
- Period assessed: May 1, 2011–April 30, 2012.
- Comparative Strengths: “data management skills”; competencies in “building relationships.”
- Comparative Developmental Areas: “analytical skills”; “oral communications.”
- Overall Assessment: year “another productive one for [Applicant], and he has again demonstrated his willingness to contribute.” Noted he met objectives “with considerable oversight and guidance from his supervisor.”
- Relative Performance Level: rated “Effective.”
- Timeline: APR discussion with Division Chief and Deputy Division Chief on July 18, 2012; Applicant informed Division Chief of intent to seek review on July 23, 2012; sought Ombudsperson assistance leading to some narrative revisions; on October 16, 2012 Applicant proceeded with formal dispute resolution.

### Applicant’s health condition and recommended work-schedule modification (beginning August 29, 2012)
- Applicant’s assertions:
  - After April 2011 incident, he “constantly feared another outburst of rage” and “worried about his job security and career prospects,” while maintaining a “grueling work schedule” and navigating “competing demands.”
  - In August 2012 he was diagnosed with a “severe health disorder comprising multiple complex symptoms.”
- HSD recommendations and communications:
  - HSD endorsed treating physicians’ recommendation of a “modified work schedule” to “work to a 40 hour week for a period of 3 months.” Recommendation originally communicated on August 29, 2012 to Division Chief, with copies to SPM and Department Director.
  - Division Chief responded on August 30, 2012: “[T]hanks for letting me know. We will of course make the necessary accommodations.” Division Chief forwarded recommendation to Applicant’s principal supervisor.
  - December 2012 HSD follow-up: recommended Applicant “should continue [to] work to a 40 hour week” given additional updated medical reports (December 2012); the modified schedule to continue “for an indefinite term” because of the “chronic nature of his medical issues.” HSD: “There is clear concern expressed by his care providers that failure to adhere to the above would put [Applicant’s] recovery and progress at risk.”
  - March 2013 HSD note to next supervisor: reiterated recommendation to maintain a fixed 40 hour week.
  - HSD later certified a six-week leave of absence “justified on medical grounds.” At end of leave, Applicant was cleared to return to work and to participate in the CWS: clearance stated that as long as Applicant continued with the CWS work schedule as defined “(80 hours over 2 weeks), he can resume his respective duties.” HSD: “Micro management of his daily hours to meet this requirement can be facilitated between [Applicant] and his management team.”

### Division Chief’s conduct and related incidents
- October 31, 2012 email:
  - Division Chief sent an interoffice email to SPM referencing Applicant as “my always reliable and non-grieving colleague.”
  - Later that day Division Chief forwarded the email chain to Deputy Division Chief, Applicant, and a co-worker.
  - Division Chief conceded the comment referred to Applicant and described sending/forwarding it as “stupid” and “inappropriate” (Tr. 343, 490).
  - SPM testified she had not noticed the sarcastic reference at the time and only reprimanded the Division Chief after the Ombudsperson raised it (Tr. 98; Tr. 1320-1321).
- Alleged 2013 incident with another staff member:
  - Applicant testified he witnessed a 2013 confrontation by the Division Chief resembling the 2011 incidents (Tr. 831-838).
  - The other staff member testified in Grievance Committee proceedings that during a high-level meeting the Division Chief was “very, very rude,” used a “very angry tone,” and later that evening confronted him in his office, “staring [him] down in [his] face, pointing at [him],” with the confrontation lasting about 30 minutes and involving the Division Chief “yelling” (Tr. 1207-1210).

### Ethics Office complaints and channels of administrative review
- Ethics complaints:
  - March 6, 2013: Applicant filed a complaint with the Fund’s Ethics Office alleging misconduct by the Division Chief.
  - May 6, 2013: Applicant filed an amended complaint that recounted April, June, and December 2011 incidents and the 2013 confrontation witnessed by Applicant; alleged retaliation via the October 31, 2012 email reference.
- Administrative review and Grievances:
  - January 17, 2013: Applicant submitted a Request for Administrative Review of his FY2012 APR, challenging the “Effective” rating and alleging “arbitrary and baseless comments,” bias, unfair procedures, harassment, and that the Department had “attempted to dishonor the agreement” regarding the 40 hour work week.
  - July 1, 2013: Applicant filed a Grievance challenging FY2012 APR as “arbitrary” and alleging prolonged harassment and hostile work environment.
  - In the Grievance Applicant requested a stay pending the Ethics Office investigation and sought relief including quashing the APR and “compensat[ion] for the Fund’s utter failure to remedy the unhealthy situation despite Grievant’s requests for assistance.”
  - July 30, 2013: Grievance Committee held the Grievance in abeyance for up to six months during the Ethics Office investigation.
  - January 10, 2014: Applicant filed a second Grievance challenging his FY2013 APR and alleged a tangible change in treatment by managers since July 1, 2013.
  - Grievance Committee consolidated the two Grievances; proceedings resumed mid-2014.
  - Hearings on the merits: November and December, 2014. Witnesses included Division Chief, Deputy Division Chief, SPM (twice), two supervisory staff, one co-worker; Applicant testified and called four other departmental staff, including a former supervisor.

### Grievance Committee findings and issues considered
- Committee scope: would consider allegations of harassment and a hostile work environment “but only to the extent that Grievant alleges that his APRs were either part of or tainted by a continuing pattern of harassment.” The Committee addressed: “Did Grievant Suffer from a Hostile Workplace that Prevented Him from Performing at a Level Above Effective?”
- Findings:
  - Found Division Chief’s testimony about three confrontations “more evasive than persuasive” and that he “purposely withheld details of events.”
  - “Largely [found] Grievant credible in his factual description of the three events,” but questioned whether the conduct was as threatening or intimidating as later described given Applicant did not report the conduct at the time.
  - Credited testimony of another staff member to the “very same kind of misconduct” in a separate incident and concluded the Division Chief’s conduct “crossed a line from mere disagreeableness to unacceptable anger and shouting,” describing it as “unacceptable for a Fund supervisor” and recommending steps be taken to prevent recurrence.
  - Also concluded that the conduct did not automatically amount to behavior so “egregious or pervasive” as to create a “hostile work environment” in the objective sense, and noted delays in pursuing complaints suggested the 2011 incidents were “not as egregious as [Applicant] now claims and were not perceived as an impediment to the performance of his work.”

*Grievance Committee Report and Recommendation (May 1, 2015), International Monetary Fund administrative proceedings*

### 87. The Committee made the following findings: “[T]he Grievance Committee finds that

### 87. The Committee made the following findings: “[T]he Grievance Committee finds that

### Grievance Committee findings (summarized)
- The Grievance Committee found that Grievant did not prove that [the Division Chief’s] three inappropriate shouting episodes in 2011:
  - rose to the level of compensable harassment; or
  - created a hostile work environment.
- The Committee found that [the Division Chief’s] conduct in 2011 did not so adversely affect Grievant’s ability to work that he was unable to rise above an Effective performance rating in FY2012.
- The Committee concluded that the FY2012 APR decision was “rooted in Grievant’s work product, not in a desire to harass Grievant. The APR was not a culmination of earlier acts of harassment.”
- The Grievance Committee declined to decide whether it had jurisdiction to consider challenges to harassment or a hostile work environment that are “not manifested in a concrete personnel decision.” 
- As to the FY2013 APR, the Committee found that the Division Chief “played virtually no role in that year’s rating” and that Applicant was not subject to a hostile work environment during that rating year.
- On Applicant’s retaliation claim, the Committee did not find a “sufficient nexus” between Applicant’s use of the Fund’s dispute resolution system and the FY2013 APR decision, given the Division Chief’s “very minimal involvement” in that decision.
- The Committee characterized the Division Chief’s October 31, 2012 email sarcastically referring to Applicant as “my always reliable and non-grieving colleague” as “inexcusable,” and found it evidenced that the Division Chief was “willing to cause harm to Grievant’s status in the eyes of his SPM.”
- The Committee concluded that “sending a disparaging email to [the Department’s] SPM about Grievant’s use of the dispute resolution system can and should be recognized as an intentional effort to stigmatize Grievant in the eyes of both colleagues and a manager involved in the rating process” and that such conduct was “inconsistent with the Fund’s retaliation policy.”
- The Committee found Applicant had not presented sufficient evidence that supervisors failed to respect the medical restriction on his hours of work and concluded that the FY2013 APR decision was “not the product of overwork or of a failure by his managers to control his work hours.”
- On May 1, 2015, the Grievance Committee recommended that Applicant’s Grievances be denied.
- On June 30, 2015, Fund Management accepted the Grievance Committee’s recommendation.
- On September 30, 2015, Applicant filed his Application with the Administrative Tribunal.

### Applicant’s principal contentions (issues and remedies sought)
- Applicant’s principal claims (summarized):
  1. The Fund abused its discretion in taking Applicant’s APR decisions for FY2012 and FY2013 by erecting obstacles to fair evaluation of his performance.
  2. The Fund wrongfully limited the number of slots for performance rankings above “Effective.”
  3. Managers unfairly favored staff with different types of assignments and expertise; managers failed to compare Applicant’s performance with peers.
  4. Applicant was held to unreasonable performance standards that others were not.
  5. Managers overworked Applicant and ignored the medical restriction on his hours of work, unfairly affecting assessment of his performance.
  6. The Division Chief subjected Applicant to harassment and retaliation, improperly motivating the FY2012 and FY2013 APR decisions.
  7. Applicant reported incidents of harassment promptly to his SPM, but the Fund failed to respond effectively.
  8. Elements of the Grievance Committee process in Applicant’s case represent failures of fair process.
- Relief sought by Applicant:
  - rescission and removal of his FY2012 and FY2013 APRs;
  - three years’ salary for moral and intangible damages, to “compensate for the Fund’s many, repeated and severe infringements of [his] rights in connection with his APRs for FY12 and FY13, including harassment and retaliation”;
  - legal fees and costs incurred in pursuing his claims in the Administrative Tribunal and underlying Grievance Committee proceedings.

### Respondent’s principal contentions (summary)
- Respondent’s principal arguments (summarized):
  1. The Fund did not abuse its discretion in taking Applicant’s FY2012 and FY2013 APR decisions.
  2. The contested APR decisions represented fair and balanced assessments by six different managers, consistent in identifying Applicant’s strengths and weaknesses.
  3. Applicant’s challenge to the Fund’s system for allocation of performance ratings above “Effective” is without merit.
  4. Evaluation of Applicant’s performance was not unfairly affected by the type of work assigned or expertise, nor were he held to unreasonable standards.
  5. Applicant was fully on notice regarding his areas for improvement.
  6. Applicant’s workload was not excessive and did not affect his FY2012 and FY2013 APR decisions; Applicant has not shown the Fund failed to honor the medical restriction on his hours of work.
  7. Neither harassment nor retaliation played a role in the contested APR decisions.
  8. The Fund acted promptly and effectively to address Applicant’s complaints once fairly placed on notice.
  9. Applicant’s complaints about the Grievance Committee’s review lie outside the Administrative Tribunal’s jurisdiction and are without merit.

### Relevant provisions of the Fund’s internal law (excerpted APR Guidelines and distribution ranges)
- The FY2013 APR Guidelines (applied to FY2012 and FY2013) emphasize:
  - building a positive performance culture with emphasis on staff development, achievement of objectives, and accountability for managing performance;
  - managers required to add at least one managerial objective and identify comparative strengths (normally, two to three competencies) and at least one comparative development area for each staff member;
  - comparative assessments should not be based on a relative comparison with peers but on competencies in relation to current role and/or future assignment.
- Relative performance levels determination should be based on:
  - (i) overall contributions against objectives and other assignments during the APR review period;
  - (ii) key strengths and development areas displayed based on the Fund competencies;
  - (iii) impact of contributions to the department and/or the Fund;
  - (iv) complexity of work assignments relative to level;
  - (v) workload;
  - (vi) performance relative to peers.
- FY 2013 Distribution Ranges for A1—B3 Staff (In percent):
  - Level 1 (Outstanding): Up to 15
  - Level 2 (Superior): Up to 15
  - Level 3 (Effective): [distribution range not printed in supplied excerpt]
- Definitions of performance levels (key characteristics) for Outstanding, Superior, Effective, and Unsatisfactory are provided; Unsatisfactory performance renders staff ineligible for merit salary increases and prescribes feedback and review steps.

### Consideration of the issues by the Tribunal (standards and specific questions)
- Standard of review for APR challenges:
  - A challenge to an APR decision succeeds 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.”
  - The Tribunal gives deference to managerial discretion in assessing professional qualifications; absent clear error or improper motive, the Tribunal will not substitute its judgment for supervisors’.
- Harassment and retaliation allegations considered in relation to APR decisions:
  - Applicant alleges Division Chief exhibited “overt personal dislike” and episodes of “severe harassment and intimidation,” and that hostility was abetted by the Deputy Division Chief and the SPM.
  - The Tribunal notes that proving an APR was “improperly motivated” does not require proving a violation of the Fund’s harassment or retaliation law; “improper motive” includes taking account of factors not relevant to assessment of professional competencies.
  - The October 31, 2012 email in which the Division Chief referred to Applicant as “my always reliable and non-grieving colleague” is accepted as relevant to the Division Chief’s attitude during the FY2013 APR period.
  - The Division Chief’s own testimony referred to “bad chemistry” between him and Applicant; tensions led to Applicant’s transfer away from the Division Chief’s direct supervision in early 2012.

*The Application of Mr. “KK”, Administrative Tribunal (IMF).*

### 107. Respondent concedes that the relationship between Applicant and the Division Chief

### 107. Respondent concedes that the relationship between Applicant and the Division Chief

### Admissions and factual context
- Respondent concedes that the relationship between Applicant and the Division Chief represented a clash of personalities.
- The Fund “does not contest . . . that [the Division Chief] was [as the Grievance Committee had found] ‘neither respectful nor courteous during the three incidents’” identified by Applicant.
- The Fund “does not condone [the Division Chief’s] sarcasm to [the SPM] regarding Applicant’s resort to the dispute resolution system.”
- In oral pleadings, the Fund associated itself with the Grievance Committee’s findings on these points.

### Whether Applicant established a causal link between alleged hostility and FY2012/FY2013 APR decisions
- Legal standard:
  - 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. (citing Ms. GG (No. 2), para. 330 and prior authority)
- Respondent’s account of decision-making involvement:
  - FY2012 APR: Respondent maintains the rating of “Effective” was “jointly determined” by the Division Chief and Deputy Division Chief, who “collaborated on drafting the APR narrative.”
  - FY2013 APR: Respondent asserts the Division Chief “played virtually no role.” The head of Applicant’s unit “alone, made the original proposal to grade Applicant ‘Effective’ for FY2013 and he wrote the original draft of Applicant’s APR.”
- Applicant’s allegations:
  - Applicant alleges the Division Chief had an adverse influence on both APRs and that the Deputy Division Chief sought to conceal the Division Chief’s role in FY2013.
- Tribunal factual findings:
  - FY2012:
    - The Deputy Division Chief took over direct supervision of Applicant in early 2012 to “take personality differences off the table.” (Tr. 486.)
    - Deputy Division Chief testified he and the Division Chief “discussed the preparation of Applicant’s APR together” and that the Division Chief “wrote up basically what [they] discussed and then asked if [the Deputy Division Chief] had any comments and [the Deputy Division Chief] added a few precisions.” (Tr. 134.)
    - Both indicated they were of like mind as to the “Effective” rating. (Tr. 134, 306.) Drafting notes for the narrative comments were exchanged between them.
  - FY2013:
    - Applicant began working under a new supervisor in summer 2012 and formally transferred to that unit in December 2012.
    - Process originated with notes of the then-head of Applicant’s unit, who transmitted a draft APR to the new unit head for “comments and suggestions.”
    - Because Applicant also held Division responsibilities, the Deputy Division Chief prepared a contribution reflecting that work and circulated it to the Division Chief, who replied: “Looks good, please go ahead and share as indicated.”
    - The contested FY2013 APR was a collaborative undertaking of multiple decision makers rather than principally the work of the Division Chief.
- Tribunal legal conclusion on causal link:
  - The Tribunal is not persuaded Applicant met his burden of showing a causal link between alleged hostility by the Division Chief and the outcome of his performance assessments for FY2012 and FY2013.

### Whether there was a reasonable and observable basis for the FY2012 and FY2013 APR decisions
- Governing framework:
  - APR Guidelines for FY2012 and FY2013 establish three performance rating categories: “Outstanding”; “Superior”; and “Effective.”
  - Each of the top two categories is reserved for not more than 15 percent of staff per department, leaving at least 70 percent of staff to be rated “Effective.”
  - Staff considered “unsatisfactory” are “Not Rated.”
  - APR Guidelines state that assignment of a performance level should be based on: “(i) overall contributions against objectives and other assignments during the APR review period; (ii) key strengths and development areas displayed based on the Fund competencies; (iii) impact of contributions to the department and/or the Fund; (iv) complexity of work assignments relative to level; (v) workload; and (vi) performance relative to peers.”
  - APR Guidelines list that “Effective” performance will “reflect mostly”:
    - High quality of work with some supervision/guidance.
    - Timely completion of assignments.
    - Depth or breadth in professional knowledge.
    - Good collaboration with others.
    - Willingness to contribute and learn.
    - Cooperate with others, make expected contributions to the team or group.
- Tribunal observations on rating distribution and evidentiary difficulty:
  - In a system where at least 70 percent of staff are to be allocated “Effective,” that rating covers a broad spectrum of performance, making it difficult for an applicant to show abuse of discretion where upper ratings are highly rationed.
- Evidence supporting “Effective” ratings:
  - Multiple managers agreed Applicant’s performance fell solidly within the “Effective” range:
    - Deputy Division Chief: managers “start from the position of assuming that everyone’s effective and then argue above or below,” and “we just did not see a justification for anything other than effective. There wasn’t even - - in my view, it wasn’t even a close discussion around the margin between effective and superior.” Deputy Division Chief assessed Applicant as “in the bottom half” of the “Effective” category. (Tr. 145.)
    - SPM: regarded Applicant’s performance as “[a]t the lower end” of the “Effective” group. (Tr. 105.)
    - Division Chief: “no question whatsoever that [Applicant] was effective, but absolutely nothing more than that effective in that year.” (Tr. 337.)
  - The unit head for late 2012/early 2013, even absent Fund-wide rationing, would have assessed Applicant “on an absolute basis” as “Effective.” (Tr. 623.) For a higher rating he would have “expected more independence” and a “very good ability to abstract from all this noise in the data to see the big themes . . . . [I]t is an area where [Applicant] . . . could improve.” (Tr. 626; Tr. 627-628.)
  - The assigned “Effective” ratings are consistent with the tenor of the narrative comments included in the APRs.
- Tribunal conclusion on ratings:
  - There was a reasonable and observable basis for Applicant’s “Effective” ratings for FY2012 and FY2013. Applicant did not point to record facts showing managers failed to account for contributions that would have placed him above “Effective.”

### Narrative comments supporting the ratings
- Nature of narrative comments:
  - Narrative comments include both positive and negative observations, consistent with APR Guidelines which advise that even outstanding performers are expected to have development areas.
  - Department practice included identifying developmental areas even for those with outstanding ratings. (Tr. 628-629.)
- Substantiation of shortcomings:
  - Record shows multiple supervisors perceived Applicant as falling short in “seeing the big picture” and drawing broader insights from data.
  - These shortcomings are consistent with evaluations over Applicant’s Fund career and with prior APRs.
- Tribunal conclusion on narrative comments:
  - The narrative assessments reflected input of multiple reviewers and did not show indicia of irrationality or arbitrariness.
  - The narrative comments have a reasonable and observable basis in the record.

### Tribunal conclusions on improper motive and next procedural steps
- The Tribunal concludes Applicant has not met his burden of showing the FY2012 and FY2013 APR decisions were improperly motivated by the Division Chief’s alleged hostility.
- The Tribunal proceeds to consider remaining grounds by which Applicant seeks to impugn his APR decisions, including whether the Fund failed to evaluate Applicant’s work in a fair and balanced manner.

### Beginning of consideration: allegations of unfair and unbalanced evaluation
- Applicant alleges:
  - He was held to a standard of perfection that co-workers were not.
  - Assessment suffered because managers disfavored the type of work to which he was assigned and in which he had expertise.
  - He lacked peers with whom he properly could be compared.
  - A few errors, representing a small fraction of his work product, had a disproportionate effect on his evaluation and deprived him of a fair and balanced assessment.

*The Tribunal’s findings.*

### 137. Respondent disputes that Applicant was held to unreasonable performance standards, in

### 137. Respondent disputes that Applicant was held to unreasonable performance standards, in

### Assessment of alleged requirement of perfection
- Applicant contends he faced a unique work program and that a unique standard of performance, "absolute perfection," was required for him to rise above average.
- Tribunal finds that the nature of Applicant’s work may have made accuracy more salient in his evaluations than for other staff, but:
  - Tailoring assessment criteria to the nature of the work performed is a core managerial responsibility.
  - The Tribunal will respect managers’ discretion over "the precise weighting to be given to the assessment of each area of work" so long as overall assessment is fair and balanced (Commentary on the Statute, p. 19; Ms. “JJ”, para. 87).
- Tribunal conclusion: Applicant has not produced evidence that he was unfairly held to a standard of perfection such that the contested APR decisions failed to provide fair and balanced evaluations.

### Allegation that managers disfavored Applicant’s type of work or expertise
- Applicant alleges his evaluations were prejudiced by managers’ alleged disfavor for the type of work to which he was assigned, and that he lacked comparable peers.
- Respondent asserts managers appreciated Applicant’s particular skill set and praised his performance in that area.
- Relevant policy and practice:
  - Comparative assessment is an important component of APRs, but not the only determinant (Staff Bulletin No. 09/08, November 25, 2009).
  - APR Guidelines list “performance relative to peers” as one of six criteria; the first criterion is “overall contributions against objectives and other assignments during the APR review period.”
  - APR Guidelines instruct that identification of “comparative strengths” and “comparative developmental areas” should be a comparative assessment of competencies in relation to role/future assignment, not based on relative comparison with peers.
- Tribunal findings:
  - Applicant has not shown his skill set or responsibilities were disfavored or that perceptions were unfairly influenced by differences in expertise.
  - In absence of evidence of irrationality or ill motive, managers’ discretion to decide who may be considered “peers” is within managerial ambit.
  - Tribunal will ordinarily not second-guess managers’ assessments of relative strengths and weaknesses (Ms. “GG” (No. 2), paras. 345, 347).

### Effect of departmental limits on upper APR ratings for FY2012 and FY2013
- Governing APR Guidelines impose constraints:
  - Each of the top two categories, “Superior” and “Outstanding,” is reserved for not more than 15 percent of staff per department, leaving at least 70 percent to be ranked as “Effective.”
  - The Guidelines state “up to” 15 percent for “Outstanding” and “up to” 15 percent for “Superior”; a full 30 percent is not required.
- Applicant’s claims:
  - Challenges the application (not the policy), alleging "arbitrary caps" in his Division and an "unduly small allocation of rankings above ‘Effective’."
  - Asserts allocation magnified Division Chief’s alleged hostility through subjective managerial jockeying.
- Respondent’s position:
  - Distribution of ratings is done at a department-wide level; fixed percentages are observed at department level though division-year variation can occur.
  - Evidence indicated Applicant’s margin between “Effective” and higher ratings “wasn’t even a close discussion.” (Tr. 145)
  - Testimony indicated that even without constraints, Applicant’s performance would have been assessed “on an absolute basis” as “Effective.” (Tr. 623)
- APR process in Applicant’s Department:
  - Began with supervisors’ assessments, continued with bilateral meetings between Department Front Office and each Division Chief, and culminated in a Departmental roundtable to determine final performance levels.
- Tribunal conclusion:
  - No procedural defect demonstrated in allocation of APR ratings.
  - Record supports a reasonable and observable basis for Applicant’s “Effective” ratings for FY2012 and FY2013.
  - Applicant has not shown he was unfairly disadvantaged by the departmental distribution rules.
  - Tribunal denies claim that the decisions represent an abuse of discretion.

### Tribunal’s overall conclusions on FY2012 and FY2013 APR challenges
- Tribunal finds Applicant has not established that the FY2012 and FY2013 APR decisions were:
  - improperly motivated by alleged hostility of Division Chief;
  - not determined in a fair and balanced manner; or
  - unfairly affected by application of the Fund’s policy limiting number of staff eligible for ratings above “Effective.”
- Tribunal notes persuasiveness of:
  - consistency of assessments;
  - deliberative process followed; and
  - ratings and comments drawn from multiple reviewers.
- Tribunal concludes Applicant has not established “wrongful structural obstacles” vitiated fair evaluation; claim of abuse of discretion is denied.
- Having concluded the APR decisions were not 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 turns to Applicant’s additional claims.

### Whether the Fund failed to respond effectively to Applicant’s complaints about working conditions
- Context:
  - Applicant tied allegations of harassment and retaliation closely to challenges to APR decisions and sought rescission/removal of contested APRs plus “moral and intangible damages” for “many, repeated and severe infringements” in connection with APRs for FY12 and FY13.
  - Tribunal recognizes Fund’s duty to respond appropriately to good faith complaints of harassment “whether or not the Tribunal ultimately concludes that the staff member has been the object of impermissible harassment” (Ms. “GG” (No. 2), para. 266).
  - In hostile work environment cases, Fund’s failure to act can be the actionable claim.
- Disputed factual point: June 6, 2011 meeting with SPM
  - Applicant’s account:
    - After incidents of April 27 and June 3, 2011, Applicant testified he was “walking into the office afraid.” (Tr. 819)
    - At the June 6, 2011 meeting, Applicant says he “told [the SPM] what had happened” (Tr. 820; Tr. 1046-1047) including both incidents, and that he felt “being threatened and [was] worried for [his] safety.” (Tr. 820)
    - Applicant states SPM promised to look into the matter but did not respond.
  - SPM’s account:
    - Denied that Applicant raised allegations of Division Chief’s “yelling or harassing or any kinds of behavior like that” (Tr. 63).
    - Testified Applicant said he had been upset because Division Chief had been perceived as disrespectful, had raised his voice, and wasn’t considerate of his feelings (Tr. 1252).
    - Denied Applicant told her he felt “physically threatened” (Tr. 1253) or “harassed or bullied” (Tr. 1273-1274).
- Respondent’s position on Fund action:
  - Fund asserts it acted promptly and effectively once on notice, and that actions began before Applicant formally raised alleged harassment to senior management.
  - Respondent asserts Applicant was removed from direct oversight of Division Chief early in timeline and was later offered transfer to another unit under new managers.
- Tribunal question: When did Applicant put Fund officials on notice of perceived physical threat, and did officials take effective action?
- Tribunal observation:
  - Applicant has not clearly stated a hostile work environment claim independent of APR challenges; he subordinated such a claim to his APR challenge.
  - Tribunal will nonetheless examine whether the Fund failed to meet its duty to respond effectively to Applicant’s complaints about working conditions.

*Source: Judgment of the Tribunal, as reflected in the cited Tribunal findings and referenced transcript excerpts (Tr. 63; Tr. 145; Tr. 623; Tr. 819; Tr. 820; Tr. 1046-1047; Tr. 1252; Tr. 1253; Tr. 1273-1274).*

### 168. In its oral proceedings, the Tribunal probed with the parties’ counsel the question of what

### j2016-2 - 168–194: Tribunal findings on June 6, 2011 meeting, managerial responses, and HSD work‑schedule recommendation

### Content of the June 6, 2011 meeting and immediate aftermath
- Documentary and testimonial evidence supports that Applicant and the SPM explored a range of issues in the meeting of June 6, 2011.
- Pre‑meeting notes by Applicant indicate he may have intended to raise that the Division Chief posed a “violent threat.”
- Post‑meeting writings and the SPM’s testimony emphasize mobility possibilities (including a particular opportunity within the Department) and the SPM’s monitoring of Applicant’s workload and need for time away for medical appointments.
- The SPM understood from the June 6, 2011 meeting that Applicant had significant workplace concerns connected to a difficult supervisory relationship.
- From June 2011 onward, the SPM, and later the Department Director, sought new working relationships for Applicant.

### Managerial steps to address supervisory tensions and mobility (timeline and actions)
- After June 6, 2011:
  - SPM “went outside the department [on] a very confidential basis . . . to find opportunities that would be a whole fresh start.” (Tr. 1283.)
  - When external opportunities did not materialize, the SPM “looked for other opportunities within the department.” (Tr. 1283.)
  - The SPM asked the Division Chief to amend Applicant’s APR narrative comments to be “more positive” to improve mobility chances (Division Chief revised APR in August 2011).
  - The SPM reported that Applicant’s circumspection hindered placement efforts. (Tr. 1283.)
- Mid‑December 2011:
  - Further measures were deemed necessary after mid‑fiscal year performance feedback.
- Early 2012:
  - The Deputy Division Chief assumed direct supervisory responsibility of Applicant “to ‘take personality differences off the table’.” (Tr. 486.)
- Summer 2012:
  - Applicant began reporting additionally to a second manager in a separate unit.
- October–December 2012:
  - October 24, 2012: SPM met Applicant; Applicant complained of “unreasonable expectations and a hostile work environment.” SPM discussed mobility prospects; Applicant viewed transfer as “an ‘improvement over the current situation,’” and SPM concluded the “sooner we do the transfer the better.”
  - November 19, 2012: SPM and Department Director met with Applicant; Department Director conveyed desire to “provide [him] with a new environment with responsibilities that suited his skill set. That it was in all our interests for [him] to succeed.”
  - December 2012: Applicant formally transferred to the new unit.

### Tribunal’s assessment of Fund’s responsiveness to workplace complaints
- The Tribunal emphasizes that Fund internal law requires managers “to refrain from misconduct and to respond effectively to it, ‘including stopping harassment in the areas under their supervision.’” (quoting Harassment Policy, para. 18.)
- Unlike prior cases cited (Mr. “F” and Ms. “GG” (No. 2)), the Tribunal does not find that the Fund failed to respond effectively here.
- Managers met Applicant’s complaints and concerns about a supervisor‑supervisee relationship that caused considerable distress.
- The SPM took steps to distance Applicant from the supervisory relationship identified as the source of the difficult working conditions.
- The Tribunal concludes the Fund recognized problems in Applicant’s supervisory situation and took effective action in response.
- The Tribunal finds that Applicant’s assertions that the SPM failed to respond or “enabled” or “abetted” the Division Chief do not withstand scrutiny.

### HSD medical recommendation: content, implementation, and contested responsibility
- HSD recommendation and related notices:
  - August 29, 2012: HSD communicated endorsement of treating physicians’ recommendation for a “modified work schedule,” specifying Applicant would “work to a 40 hour week for a period of 3 months.”
  - December 2012: the work schedule modification was renewed “for an indefinite term,” given the “chronic nature of his medical issues.” Notice warned that failure to adhere “would put [Applicant’s] recovery and progress at risk.”
  - March 2013: the same work schedule modification was confirmed again in a notification from HSD to Applicant’s next supervisor.
  - After a six‑week medical leave, Applicant was cleared to participate in CWS: “By definition as long as [Applicant] continues with the CWS work schedule as defined (80 hours over 2 weeks), he can resume his respective duties.” HSD: “Micro management of his daily hours to meet this requirement can be facilitated between [Applicant] and his management team.”
- Managerial responses and implementation measures:
  - Division Chief responded promptly: “We will of course make the necessary accommodations.” He forwarded HSD’s recommendation to the unit head and noted joint management was required.
  - Division Chief’s method of accommodation: “taking off of [Applicant’s] portfolio work that he wasn’t getting to and that might get in the way of that 40-hour week and assigning it to others or postponing it.” (Tr. 395.)
  - Division Chief acknowledged lack of time sheets and reliance on Applicant to report if he risked exceeding 40 hours. (Tr. 395.)
  - SPM testified the 40‑hour restriction was discussed in senior management with the department head and periodically among senior managers to “make absolutely sure that this was abided by.” (Tr. 1267–1268.)
  - The Division Chief had already “made big accommodations” before the formal 40‑hour restriction by transferring or postponing responsibilities. (Tr. 399–400.)
  - Email exchanges in September 2012 show managers clarified expectations and advised Applicant to approach them for help prioritizing tasks.
- Disputed allocation of responsibility:
  - Applicant contends he had to “uncomfortably and defiantly mandate that the Department adhere to its agreement so as to protect [his] health and prevent further physical damage.”
  - Respondent maintains the onus is on the staff member to apprise managers of possible violations: “The responsibility to keep managers informed in the event of a health‑related restriction, including during time spent teleworking from home, must indeed rest with the staff member.”
  - Respondent also asserts the Fund treats such notifications as requests for reasonable accommodation and that the restriction did not require fundamental changes because the 40‑hour week is the Fund’s standard schedule.
- Tribunal conclusion on HSD recommendation duties:
  - The record does not support a finding that the Fund failed to fulfill any duty arising from HSD’s recommendation for a modified work schedule.
  - Managers had been taking steps to lighten Applicant’s workload before HSD’s notification.
  - Once the 40‑hour restriction was put in place, managers communicated among themselves and with Applicant about implementation across multiple responsibilities and reporting relationships.
  - Given Applicant’s responsibilities and the Fund’s flexible arrangements (including CWS and teleworking, which Applicant used), it was reasonable to respond to the restriction by adjusting workload.
  - Applicant did not share his detailed time records with managers nor raise substantive deviations from the 40‑hour limitation; SPM did not recall Applicant reporting violations. (Tr. 1018–1021; Tr. 111.)
  - Therefore, the Tribunal does not find Applicant has prevailed on a claim that the Fund failed its duty under HSD’s recommendation.

### Key numeric facts and quoted text preserved exactly as in the record
- Dates and periods:
  - June 6, 2011
  - June 2011 onward
  - August 2011 (Division Chief revised APR)
  - mid-December 2011
  - early 2012
  - summer 2012
  - October 24, 2012
  - November 19, 2012
  - December 2012 (formal transfer)
  - August 29, 2012 (HSD notification)
  - “work to a 40 hour week for a period of 3 months”
  - December 2012 renewal “for an indefinite term”
  - March 2013 (confirmation to next supervisor)
  - six‑week medical leave
  - CWS definition: “80 hours over 2 weeks”
- Exact quoted phrases from the record:
  - “violent threat”
  - “went outside the department [on] a very confidential basis . . . to find opportunities that would be a whole fresh start.” (Tr. 1283.)
  - “When that wasn’t materializing,” she testified, she “looked for other opportunities within the department.” (Id.)
  - “we wanted to make absolutely sure that this was abided by.” (Tr. 1267.)
  - “We will of course make the necessary accommodations.” (Division Chief response to HSD.)
  - “By definition as long as [Applicant] continues with the CWS work schedule as defined (80 hours over 2 weeks), he can resume his respective duties.”
  - “The responsibility to keep managers informed in the event of a health‑related restriction, including during time spent teleworking from home, must indeed rest with the staff member.” (Respondent’s position as presented.)

*Source: International Monetary Fund — Tribunal findings in j2016-2 (excerpt).*

### 195. In the view of the Tribunal, rather than establishing that Applicant’s managers displayed

### j2016-2 - 195. In the view of the Tribunal, rather than establishing that Applicant’s managers displayed

### Tribunal findings on managers’ handling of medical work-hour restriction
- The Tribunal found the record supports the Fund’s assertion that the managers “attempted to coordinate his workload amongst themselves and with Applicant.”
- The allegation that managers failed to abide by HSD’s recommendation that the Applicant’s work schedule be modified is not sustained.
- The Tribunal concluded the Fund did not fail to fulfill any duty arising from HSD’s restriction on the Applicant’s hours of work.

### Impact of workload and medical restriction on performance evaluation (APR)
- The medical restriction applied only in the period covered by the FY2013 APR; Applicant alleged the restriction “impacted heavily and negatively” on that APR decision.
- Applicant suggested performance might have been assessed lower because he worked to a standard 40-hour week rather than longer hours.
- The Tribunal concluded:
  - Applicant has not shown that either an excessive workload or a diminution in workload due to the medical restriction wrongfully affected appreciation of his performance.
  - The “Effective” rating embraced a wide range of performance.
  - The narrative comments supporting Applicant’s ratings were fair and balanced.
  - There is cogent evidence of a reasonable and observable basis for the contested APR decisions.
  - Applicant has not persuaded the Tribunal that the APR outcomes would have been different absent the workload-related issues raised.

### Observations on written policy for reasonable accommodation
- The Tribunal was troubled that the Fund has not identified any written protocol for handling restrictions advised by HSD on working hours or other forms of reasonable workplace modifications when a staff member’s health condition requires them.
- In oral submissions, the Fund acknowledged that when HSD advises managers that a medical condition requires modification of working hours, this triggers a duty of reasonable accommodation; the precise contours of this duty are not spelled out in the Fund’s written internal law.
- The absence of a transparent policy can create difficulties, including for staff who report to multiple managers and those who utilize flexible work arrangements.
- The Tribunal noted precedent where the Fund’s written law addresses obligations for staff who become disabled for separation on medical grounds and responsibilities in case of work-related injuries covered by Workers’ Compensation, but lacks a pertinent internal regulation governing the duty to provide recommended work accommodations.
- The Tribunal referenced that the World Bank has codified a “reasonable accommodation” standard in its written internal law and that such accommodations are widely required in employment legislation of many countries to prevent discrimination on grounds of disability and promote equal opportunity.

### Grievance Committee process issues and Tribunal jurisdiction
- Applicant challenged:
  - The Grievance Committee’s denial of his request to disclose results of the Ethics process related to Ethics complaints against his Division Chief.
  - Rulings regarding questioning of a Fund witness (the SPM) as to alleged “coaching” by Fund counsel.
  - The Grievance Committee’s seeking of medical records during the liability phase of proceedings.
- Respondent argued these complaints fall outside the Tribunal’s jurisdiction and are without merit.
- The Tribunal’s practice and rulings:
  - It will not entertain challenges to the Grievance Committee’s decisions as to production of documents and admissibility of evidence when those decisions are not “administrative acts” within Article II of the Tribunal’s Statute.
  - The Tribunal may order production of evidence in its own forum to rectify lapses in the Grievance Committee’s evidentiary record.
  - The Tribunal may consider whether there is cause to discount the Grievance Committee’s record when weighing it as part of the evidence.
- Case-specific outcomes:
  - Applicant sought production of Ethics documents before the Tribunal pursuant to Rule XVII; the Tribunal denied that request.
  - Applicant requested that the SPM be called to testify in the Tribunal’s oral proceedings to address alleged “coaching”; the Tribunal concluded the issue had been raised in the Grievance proceedings and was not material to disposition of the case.
  - Requests for systemic guidance on privilege relating to witness-coaching and recall after coaching were deemed matters for the Fund’s policy-making organs.
  - The Tribunal confirmed it will not revisit the Grievance Committee’s evidentiary decisions.
  - After review of the record, the Tribunal found no ground to give less than the usual weight to the Grievance Committee proceedings.

### Conclusions and disposition
- The Tribunal concluded:
  - Applicant has not established that his APR decisions for FY2012 and FY2013 represent an abuse of discretion.
  - Applicant has not shown that “wrongful structural obstacles,” including alleged managerial hostility, vitiated fair evaluation of his performance; there is cogent evidence of a reasonable and observable basis for the contested APR decisions.
  - Applicant has not substantiated a claim that the Fund failed to respond effectively to his complaints about working conditions.
  - Applicant has not shown the Fund failed to fulfill any duty arising from HSD’s recommendation to modify his work schedule in response to a health condition; nor that his workload was mismanaged or that performance assessments were unfairly affected by workload issues.
  - Applicant raised no ground for the Tribunal to give less than the usual weight to the Grievance Committee record.
- Procedural note:
  - Applicant filed a Revised Request for Costs on July 19, 2016; Rule XI allows, on an “exceptional” basis, the President of the Administrative Tribunal to admit additional pleadings. Given denial of the Application, the President decided there were no exceptional circumstances to admit the Revised Request for Costs.
- Decision:
  - The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Mr. “KK” is denied.

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_Source: https://www.imf.org/-/media/files/imfat/j2016-2.pdf_