## JUDGMENT No. 2020-1

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---

### Proceedings and judicial composition
- Judgment delivered by the Administrative Tribunal of the International Monetary Fund (IMF), composed pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Edith Brown Weiss. (Session met on October 5, 2020.)
- Applicant: Mr. “QQ”, a staff member of the Fund; Applicant represented himself.
- Respondent representation: Ms. Diana Benoit and Mr. Mark Racic, Senior Counsels, IMF Legal Department.
- Session format: held by videoconference (electronic means) due to the COVID-19 pandemic and Fund work-from-home directive; Tribunal relied on amended Article XI of the Statute (effective July 14, 2020) permitting sessions by electronic means.

### Claims and relief sought by the Applicant
- Challenged decisions:
  - (i) Non-promotion from Grade A11 to Grade A12 in 2016.
  - (ii) Credit only partially (50 percent) of earlier contractual employment in a different Fund department when setting starting Grade at A11 in 2013.
- Alleged motive and related allegations:
  - Discrimination on the basis of Applicant’s nationality.
  - Marginalization, failure to assign career-developing work, lack of written guidance governing promotion processes, misclassification of job responsibilities, and improper treatment by the Grievance Committee (including alleged crediting of false testimony and exclusion of relevant evidence).
- Relief sought by Applicant:
  - Rescission of the decision to credit only partially contractual work experience in setting starting Grade at A11 in 2013.
  - Grant Applicant a Grade A12 from 2013 and compensation for associated salary loss.
  - Rescission of the non-promotion decision of 2016.
  - Grant Applicant a Grade A13 from 2016 and compensation for associated salary loss.
  - 6 years’ salary as moral and intangible damages.
  - Legal fees and costs “if any,” to be awarded under Article XIV, Section 4 of the Statute if the Application is well-founded in whole or in part.

### Respondent’s procedural challenge (Motion to Dismiss in Part)
- Motion basis:
  - Motion filed under Rule XII (Summary Dismissal) seeking summary dismissal of the part of the Application challenging the starting Grade A11 assignment in 2013.
  - Principal procedural contention: Applicant failed to exhaust channels of administrative review as required by Article V of the Statute.
- Procedural consequence: Tribunal suspended the period for answering the Application on the merits pending resolution of the Motion to Dismiss in Part (admissibility and, if admissible, merits).

### Rule XII (Summary Dismissal) — procedural framework applied
- Relevant provisions cited exactly:
  - Rule XII, para. 1: Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is clearly inadmissible.
  - Rule XII, para. 2: The Fund may file such a motion within thirty days of its receipt of the application. The filing of the motion shall suspend the period of time for answering the application until the motion is acted on by the Tribunal.
  - Rule XII, paras. 3–8: Procedural requirements for attachments, transmission to Applicant, Applicant’s objection period of thirty days, and limitation on further pleadings unless President requests.

### Key dates and procedural history relevant to the Motion
- August 29, 2019: Applicant filed Application.
- September 3, 2019: Application transmitted to Respondent.
- September 4, 2019: Registrar circulated a notice summarizing issues pursuant to Rule IV, para. (f).
- October 2, 2019: Respondent filed Motion to Dismiss in Part (Rule XII).
- October 15, 2019: Tribunal requested Views on Admissibility of the Motion in light of IMFAT Order No. 2019-1 (Ms. “PP”).
- October 30, 2019: Fund filed its Views on Admissibility; transmitted to Applicant.
- December 17, 2019: Applicant submitted Response to the Fund’s Motion and its Admissibility; pleadings on the Motion deemed complete.

### Ancillary procedural determinations
- Anonymity:
  - Applicant sought anonymity under Rule XXII; Respondent opposed.
  - Tribunal granted anonymity for two articulated reasons:
    - Protecting candor in assessment of professional competencies in promotion disputes.
    - Seriousness of discrimination allegations based on nationality and protection of staff identities.
  - Tribunal reaffirmed that a “bare assertion that adverse employment consequences may result from publication of an applicant’s name does not, of itself, form a basis for granting a request for anonymity.”
- Document production requests under Rule XVII: Tribunal determined such requests were not pertinent to the Motion to Dismiss in Part and took no decision on them at this procedural stage.
- Oral proceedings: Neither party requested oral proceedings on the Motion to Dismiss in Part; Tribunal decided oral proceedings were not warranted for resolution of the Motion.

### Factual background relevant to the Motion to Dismiss in Part
- Employment chronology:
  - 2010: Applicant first employed by the Fund as a contractual employee at a “shadow grade” of A11.
  - 2013: Applicant appointed as a staff member on a three-year fixed-term appointment at Grade A11 in a different department with a different job title than during contractual employment.
  - February 2016: Applicant advised that his fixed-term staff appointment would be converted to an open-ended staff appointment, effective August 2016.
  - Spring 2016: Applicant’s section chief nominated him for consideration for promotion from Grade A11 to Grade A12 for the July 2016 promotion round; outcome: Applicant was not promoted in 2016.
- Applicant’s inquiry and HR response:
  - August 4, 2016: Applicant emailed HRD asking how his Grade had been set at A11 in 2013.
  - August 15, 2016: HR Officer responded: “In 2013 you were hired at grade A11 on the basis of a completed PhD and one and [one-]half years of professional relevant experience. Your previous experience in [another Fund department] as [former job title] was counted as 50%, as your position did not reflect the full scope of work and activities of a full-fledged economist.”
  - Applicant sought re-examination and mediation followed in September and October 2016.

### Administrative review steps and Grievance Committee proceedings
- December 8, 2016: Applicant submitted a Request for Administrative Review challenging the 2016 non-promotion and alleging the decision “completely ignored” his pre-2013 work.
- February 21, 2017: HRD Director’s Administrative Review Decision:
  - Department had more A11-A15 Economists recommended for promotion than promotions budgeted.
  - Department’s roundtable determined “other candidates more fully met the criteria for a career-progression promotion.”
  - Decision “complied with relevant policies and procedures and was reached on reasonable grounds.”
  - Clarified that “experience” under the Promotion Policy measures “mastery of the full range of tasks expected in the current grade,” not number of years of service.
- April 19, 2017: Applicant filed a Grievance with the Fund’s Grievance Committee.
- August 4, 2017: Grievance Committee pre-hearing conference: ruled a claim contesting actions taken in 2013 was not receivable, but allowed evidence relating to entire time working for the IMF to the extent relevant to discrimination claim.
- September 30, 2017: Discovery produced a document confirming Applicant was given 50 percent credit for the three years he worked as a contractual employee from 2010-2013.
- May 2 and 8, 2018: Grievance Committee evidentiary hearing with five witnesses; HRD official testified Applicant’s contractual experience had been credited at 50 percent.
- Grievance Committee limited cross-examination on whether HRD acts in 2013 were discriminatory and solicited post-hearing submissions on admissibility of the 2013 starting-grade challenge.

### Grievance Committee conclusions and Management decision
- April 23, 2019: Grievance Committee Report and Recommendation:
  - Concluded Applicant had not raised a timely complaint regarding the 2013 starting-grade decision and therefore that claim was not receivable.
  - Stated it had a complete record to decide the jurisdictional question after post-hearing submissions.
  - Observed that “even if [it] were to address the merits” the argument that HRD improperly gave only 50 percent credit “would fail.”
  - Cited HRD testimony and elements of Applicant’s APRs in his former Department as supporting the conclusion that his contractual work did not merit full credit.
  - Concluded: “The Committee does not find a basis for rejecting the Fund’s discretionary decision to give Grievant 50% credit for his work with [his former Department]. The APRs also undermine Grievant’s argument that he was completely unaware of the reasons for receiving a grade A11 when hired by [his current Department].”
- May 29, 2019: Fund Management accepted the Grievance Committee’s recommendation denying the Grievance.
- August 29, 2019: Applicant filed an Application with the Administrative Tribunal.

### Applicant’s substantive contentions summarized
- HRD discriminatorily misclassified Applicant’s former-job responsibilities by affording only 50 percent credit for his three years of contractual work in setting the 2013 starting grade at A11.
- Evidence would show disparate treatment, including full credit to others in specialized career streams but partial credit to Applicant.
- Selective application of rules regarding starting grade and promotions concealed discriminatory practices.
- Applicant’s Department marginalized him and denied assignments that would have showcased competencies, impairing promotion to Grade A12 in 2016.
- Differential treatment was due to Applicant’s nationality; absence of staff of his nationality at Grade A15 or above in his Department.
- Departmental promotion roundtable practices lacked written policies preventing abuse of discretion.
- Grievance Committee credited false testimony, excluded relevant evidence, and exhibited linguistic and cultural insensitivity.
- Requested remedies listed under “Claims and relief sought by the Applicant” above.

### Respondent’s procedural and jurisdictional contentions (Motion merits)
- Article V, Section 1 of the Statute requires exhaustion of administrative review before filing with the Tribunal.
- Admissibility and timeliness arguments:
  - The 2013 starting-grade challenge “has never been reviewed, and the relevant witnesses have not been heard.”
  - No “exceptional circumstances” shown to set aside statutory time limits.
  - Applicant’s “discovery rule” argument fails because Applicant knew essential elements of his claim in 2013.
  - Even if discovery rule applied, Applicant learned basis for the A11 decision in August 2016 but did not challenge it until April 2017 — more than six months later — making it untimely.
  - The claim was inappropriately first raised before the Grievance Committee, bypassing requisite administrative review procedure.

### Tribunal’s admissibility framework and approach to motions to dismiss in part
- Rule XII allows summary dismissal only if an application is “clearly inadmissible.”
- Transposing summary dismissal principles for an entire application to a part of an application raises risks due to potential relationships between the targeted claim and remaining claims.
- The Tribunal will treat admission of motions to dismiss in part as the exception rather than the rule and will weigh efficiency, fairness, and the potential to dispose reliably of admissibility.
- Only if admitting the motion “will serve the interests of justice” will the Tribunal admit a motion to dismiss in part.

### Applicant’s knowledge and the discovery rule
- Tribunal summary of Applicant’s position:
  - The 2013 appointment at Grade A11 did not provide Applicant with knowledge of the essential element of his claim; the underlying reason was partial credit for his former-department work.
  - Applicant learned about the “misclassification of [his] credentials” in August and September 2016.
  - Applicant first obtained written evidence of the partial crediting on September 30, 2017, through Grievance Committee discovery; that date "should be considered the first effective date for Applicant to challenge the 2013 decision."
- Tribunal noted Applicant relied on Fund practices, staff orientation, and an information advantage the Fund held in hiring.

### Inter-relatedness of the 2013 and 2016 claims
- Tribunal findings:
  - Facts and arguments pertinent to admissibility of the 2013 claim are intertwined with facts and arguments pertinent to the merits of the Application as a whole.
  - Determining exhaustion under Article V for the 2013 claim requires a thorough factual and legal examination, including when the Applicant effectively launched his challenge and whether "exceptional circumstances" excuse delay.
  - These questions are most reliably answered after a full review of the record and parties’ arguments on the merits.
- Tribunal precedent cited in support of caution against piecemeal adjudication:
  - Ms. “PP”, Order No. 2019-1.
  - Mr. “LL”, Order No. 2016-1.
  - Ms. C. O’Connor v. International Monetary Fund, IMFAT Judgment No. 2010-1.
  - Ms. “GG”, IMFAT Judgment No. 2013-3 and subsequent litigation (No. 2), IMFAT Judgment No. 2015-3.

### Tribunal’s conclusion on the Motion to Dismiss in Part
- The Tribunal will rarely admit a motion to dismiss part of an application prior to full exchange on the merits where claims are closely intertwined.
- After weighing efficiency, fairness, and the potential for reliably disposing of admissibility, the Tribunal decided it will not take a decision on admissibility of the 2013 starting-grade challenge in advance of a full exchange of pleadings on the merits of the Application as a whole because:
  - Applicant’s two principal claims are intertwined both in fact and in law; and
  - the inter-relatedness is pertinent to Applicant’s admissibility arguments.
- The Tribunal is not persuaded this case presents circumstances warranting admission of a Motion to Dismiss in Part.

### Decision and orders
- The Motion to Dismiss in Part is dismissed as inadmissible, without prejudice to Respondent’s right to raise in its pleadings on the merits its challenge to the admissibility of part of the Application.
- The proceedings on the merits shall resume in accordance with the Tribunal’s Rules of Procedure.
- The Fund’s Answer shall be due forty-five days from notification of this Judgment.
- Decision issued unanimously by:
  - Catherine M. O’Regan, President
  - Andrés Rigo Sureda, Judge
  - Edith Brown Weiss, Judge
- Signed:
  - /s/ Catherine M. O’Regan, President
  - /s/ Celia Goldman, Registrar
- Location and date: Washington, D.C. November 2, 2020

*Administrative Tribunal record j2020-1.*

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

### INTRODUCTION

### Proceedings and judicial composition
- Judgment delivered by the Administrative Tribunal of the International Monetary Fund (IMF), composed pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Edith Brown Weiss. (Session met on October 5, 2020.)
- Applicant: Mr. “QQ”, a staff member of the Fund; Applicant represented himself.
- Respondent representation: Ms. Diana Benoit and Mr. Mark Racic, Senior Counsels, IMF Legal Department.
- Session format: held by videoconference (electronic means) due to the COVID-19 pandemic and Fund work-from-home directive; Tribunal relied on amended Article XI of the Statute (effective July 14, 2020) permitting sessions by electronic means.

### Claims and relief sought by the Applicant
- Challenged decisions:
  - (i) Non-promotion from Grade A11 to Grade A12 in 2016.
  - (ii) Credit only partially (50 percent) of earlier contractual employment in a different Fund department when setting starting Grade at A11 in 2013.
- Alleged motive: discrimination on the basis of Applicant’s nationality; additional allegations of marginalization, failure to assign career-developing work, lack of written guidance governing promotion processes, misclassification of job responsibilities, and improper treatment by the Grievance Committee (including alleged crediting of false testimony and exclusion of relevant evidence).
- Relief sought:
  - (a) Rescission of the decision to credit only partially contractual work experience in setting starting Grade at A11 in 2013.
  - (b) Grant Applicant a Grade A12 from 2013 and compensation for associated salary loss.
  - (c) Rescission of the non-promotion decision of 2016.
  - (d) Grant Applicant a Grade A13 from 2016 and compensation for associated salary loss.
  - (e) 6 years’ salary as moral and intangible damages.
  - (f) Legal fees and costs “if any,” to be awarded under Article XIV, Section 4 of the Statute if the Application is well-founded in whole or in part.

### Respondent’s procedural challenge
- Respondent filed a Motion to Dismiss in Part under Rule XII (Summary Dismissal) seeking summary dismissal of the part of the Application challenging the starting Grade A11 assignment in 2013.
- Principal procedural contention: Applicant failed to exhaust channels of administrative review as required by Article V of the Statute.
- Consequence: Tribunal suspended the period for answering the Application on the merits pending resolution of the Motion to Dismiss in Part (admissibility and, if admissible, merits).

---

### Rule XII (Summary Dismissal) — procedural framework applied
- Relevant provisions cited exactly:
  - Rule XII, para. 1: Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is clearly inadmissible.
  - Rule XII, para. 2: The Fund may file such a motion within thirty days of its receipt of the application. The filing of the motion shall suspend the period of time for answering the application until the motion is acted on by the Tribunal.
  - Rule XII, paras. 3–8: Procedural requirements for attachments, transmission to Applicant, Applicant’s objection period of thirty days, and limitation on further pleadings unless President requests.

### Procedural history relevant to the Motion
- Key dates and exchanges:
  - August 29, 2019: Applicant filed Application.
  - September 3, 2019: Application transmitted to Respondent.
  - September 4, 2019: Registrar circulated a notice summarizing issues pursuant to Rule IV, para. (f).
  - October 2, 2019: Respondent filed Motion to Dismiss in Part (Rule XII).
  - October 15, 2019: Tribunal requested Views on Admissibility of the Motion in light of IMFAT Order No. 2019-1 (Ms. “PP”).
  - October 30, 2019: Fund filed its Views on Admissibility; transmitted to Applicant.
  - December 17, 2019: Applicant submitted Response to the Fund’s Motion and its Admissibility; pleadings on the Motion deemed complete.

---

### Ancillary procedural determinations
- Anonymity request:
  - Applicant sought anonymity under Rule XXII; Respondent opposed.
  - Tribunal granted anonymity for two articulated reasons:
    - Protecting candor in assessment of professional competencies in cases challenging promotion decisions, as managers’ comparative assessments are central to promotion disputes.
    - Seriousness of discrimination allegations based on nationality; anonymity also protects identities of staff involved.
  - Tribunal reaffirmed that a “bare assertion that adverse employment consequences may result from publication of an applicant’s name does not, of itself, form a basis for granting a request for anonymity.”
- Document production requests:
  - Applicant requested production of documents under Rule XVII.
  - Tribunal determined such requests are not pertinent to the Motion to Dismiss in Part and took no decision on them at this procedural stage.
- Oral proceedings:
  - Article XII of the Statute and Rule XIII, para. 1 govern oral proceedings.
  - Neither party requested oral proceedings on the Motion to Dismiss in Part; Tribunal decided oral proceedings were not warranted for resolution of the Motion.

---

### Factual background relevant to the Motion to Dismiss in Part
- Employment chronology and facts preserved exactly:
  - 2010: Applicant first employed by the Fund as a contractual employee at a “shadow grade” of A11.
  - 2013: Applicant appointed as a staff member on a three-year fixed-term appointment at Grade A11 in a different department with a different job title than during contractual employment.
  - February 2016: Applicant advised that his fixed-term staff appointment would be converted to an open-ended staff appointment, effective August 2016.
  - Spring 2016: Applicant’s section chief nominated him for consideration for promotion from Grade A11 to Grade A12 for the July 2016 promotion round; outcome: Applicant was not promoted in 2016.

---

### Tribunal’s limited scope in the present Judgment
- The present Judgment addresses only:
  - (a) Whether the Fund’s Motion to Dismiss in Part is admissible; and
  - (b) If admissible, whether it should be granted.
- The full merits of Applicant’s claims will be addressed in a subsequent Judgment following completion of pleadings and closure of the record.

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2020-1.*

### 19. In August 2016, when the conversion of his fixed-term staff appointment to an open-

### j2020-1 — Applicant’s challenge to A11 starting grade and subsequent administrative review

### Chronology and factual findings about the 2013 starting-grade decision
- Applicant was appointed to the staff in 2013 at Grade A11.
- Applicant held a PhD and had worked for the Fund as a contractual employee for 3 year[s] prior to the 2013 appointment.
- On August 4, 2016, Applicant emailed HRD asking how his Grade had been set at A11 in 2013 given his prior working experience and PhD.
- On August 15, 2016, an HR Officer responded: “In 2013 you were hired at grade A11 on the basis of a completed PhD and one and [one-]half years of professional relevant experience. Your previous experience in [another Fund department] as [former job title] was counted as 50%, as your position did not reflect the full scope of work and activities of a full-fledged economist.”
- Applicant replied on August 17, 2016: “Thanks for your explanation, but I cannot agree with you,” and sought a meeting with HRD to discuss the matter.
- On August 23, 2016, Applicant wrote to a higher-ranking HRD official requesting a formal re-examination, stating that he had “passed the panel interview of middle career in 2013 after three-year working at [former department]” and that his 3-year work “involved providing guidance to area economists instead of offering assistance.”
- Applicant’s dissatisfaction with his 2013 starting grade became the subject of Mediation in September and October 2016; an HRD official confirmed participation in Mediation.

### Administrative review steps and outcomes
- December 8, 2016: Applicant submitted a Request for Administrative Review to the HRD Director seeking review of his Department’s 2016 non-promotion decision and alleging the decision “completely ignored” his pre-2013 work and that since June 2010 he had worked in the Fund for six years with an Econ PhD as an A11 economist.
- February 21, 2017: HRD Director’s Administrative Review Decision:
  - Identified that in 2016 the number of A11-A15 Economists recommended for promotion in Applicant’s Department exceeded the number of promotions budgeted for the Department.
  - Stated the Department’s promotion roundtable determined “other candidates more fully met the criteria for a career-progression promotion” and that the decision “complied with relevant policies and procedures and was reached on reasonable grounds.”
  - Reiterated that “neither years of Fund experience nor time in grade were factors in the discussion at the Roundtable,” and that “experience” under the Promotion Policy measures “mastery of the full range of tasks expected in the current grade,” not number of years of service.
- April 19, 2017: Applicant filed a Grievance with the Fund’s Grievance Committee challenging the 2016 non-promotion, alleging “abuse of discretion and IMF’s institutional discrimination” and requesting retrospective promotion(s) and credit for his prior service.
- August 4, 2017: Grievance Committee pre-hearing conference ruled that “a claim contesting actions taken in 2013 was not receivable, but that Grievant would be permitted to introduce evidence relating to his entire time working for the IMF (including with [his former Department]) to the extent it would be relevant to his claim of discrimination.”
- September 30, 2017: As part of discovery, the Fund produced a document confirming Applicant was given 50 percent credit for the three years he worked as a contractual employee from 2010-2013.
- May 2 and 8, 2018: Grievance Committee evidentiary hearing with five witnesses, including managers and an HRD official who testified that Applicant’s contractual experience had been credited at 50 percent to reflect job responsibilities in that role.
- Grievance Committee limited Applicant’s cross-examination on whether HRD acts in 2013 were discriminatory, noting it was “hearing this for the first time today.”
- The Committee solicited post-hearing submissions specifically addressing admissibility of the 2013 starting-grade challenge and any additional evidence explaining why Applicant received A11 rather than A12.

### Grievance Committee’s conclusions
- April 23, 2019: Grievance Committee Report and Recommendation:
  - Concluded Applicant had not raised a timely complaint regarding the 2013 starting-grade decision and therefore that claim was not receivable.
  - Stated that it believed it had a complete record to decide the jurisdictional question after post-hearing submissions.
  - Added that “even if [it] were to address the merits” the argument that HRD improperly gave only 50 percent credit “would fail.”
  - Cited the HRD official’s testimony and elements of Applicant’s APRs in his former Department as supporting the conclusion that his contractual work did not merit full credit.
  - Concluded: “The Committee does not find a basis for rejecting the Fund’s discretionary decision to give Grievant 50% credit for his work with [his former Department]. The APRs also undermine Grievant’s argument that he was completely unaware of the reasons for receiving a grade A11 when hired by [his current Department].”
- May 29, 2019: Fund Management accepted the Grievance Committee’s recommendation denying the Grievance.
- August 29, 2019: Applicant filed an Application with the Administrative Tribunal.

### Applicant’s principal substantive contentions
- HRD discriminatorily misclassified Applicant’s job responsibilities in his former Department by affording only 50 percent credit for his three years of contractual work when setting the 2013 starting grade at A11.
- Evidence would show disparate treatment, including that HRD gave Applicant only partial credit while granting full credit to others in specialized career streams.
- The Fund selectively applied its rules regarding starting grade and promotions to conceal discriminatory practices.
- Applicant’s Department marginalized him and discriminatorily denied him assignments that would have showcased competencies, impairing promotion chances from A11 to A12 in 2016.
- The differential treatment was due to Applicant’s nationality; there were no staff of his nationality at Grade A15 or above in his Department to participate in the 2016 promotion discussions.
- Departmental promotion roundtable practices lacked written policies to prevent abuse of discretion.
- The Grievance Committee credited false testimony, excluded relevant evidence, and exhibited linguistic and cultural insensitivity.
- Applicant’s requested relief includes:
  - rescission of the decision to credit only partially his contractual work experience in setting his starting Grade at A11 in 2013;
  - granting Applicant a Grade A12 from 2013 and compensation for the associated salary loss;
  - rescission of the non-promotion decision of 2016;
  - granting Applicant a Grade A13 from 2016 and compensation for the associated salary loss;
  - 6 years’ salary as moral and intangible damages to “compensate for the Fund’s discriminatory act and all the associated harms”;
  - legal fees and costs “if any,” which the Tribunal may award, in accordance with Article XIV, Section 4 of the Statute.

### Respondent’s principal procedural and jurisdictional contentions (Motion to Dismiss in Part)
- Respondent seeks summary dismissal in part of the Application arguing Article V, Section 1 of the Statute requires exhaustion of administrative review before filing with the Tribunal.
- Admissibility arguments for deciding the Motion to Dismiss in Part before the Fund’s Answer:
  - Deciding the motion pre-Answer serves fairness and efficiency and avoids expending resources on merits where threshold jurisdictional requirements are not met.
  - Applications challenging more than one “administrative act” are not explicitly contemplated by the Statute or Rules; summary dismissal in part should be applied flexibly.
  - Applicant’s challenge to the 2013 starting-grade decision is a “major part” of the Application and overlaps with the 2016 non-promotion challenge; its receivability should be resolved before merits pleadings proceed.
- Merits of the Motion to Dismiss in Part:
  - Applicant’s 2013 starting-grade challenge should be summarily dismissed for failure to exhaust administrative review: the claim “has never been reviewed, and the relevant witnesses have not been heard.”
  - Applicant has not shown “exceptional circumstances” to set aside statutory time limits.
  - Applicant’s “discovery rule” argument fails because Applicant was aware of essential elements of his claim in 2013.
  - Even if the discovery rule applied, Applicant learned the basis for the A11 decision in August 2016 but did not challenge it until the Grievance in April 2017 — more than six months later — making it untimely.
  - The challenge was inappropriately first raised before the Grievance Committee, bypassing requisite administrative review procedure.

### Procedural posture presented to the Tribunal
- The Motion to Dismiss in Part raises the issue whether the Tribunal should summarily dismiss the part of the Application challenging the 2013 starting grade A11 for failure to exhaust available channels of administrative review and/or for untimeliness.
- The parties dispute whether the Tribunal should resolve this jurisdictional matter prior to the Fund's filing of an Answer on the merits.

*Source: Administrative Tribunal record j2020-1.*

### 1. Applicant’s knowledge in 2013 that he was appointed at Grade A11 did not

### j2020-1 - 1. Applicant’s knowledge in 2013 that he was appointed at Grade A11 did not 

### Applicant’s knowledge and timely knowledge of essential elements
- The 2013 appointment at Grade A11 did not provide Applicant with knowledge of the essential element of his claim; the underlying reason for the 2013 decision was partial credit for his work in his former department, which "reflects the discriminatory practice and thus involves a major element of his claim."
- Applicant learned about the “misclassification of [his] credentials” in August and September 2016.
- Applicant first obtained written evidence of the partial crediting of his contractual experience on September 30, 2017, through the discovery process in the Grievance Committee proceedings; that date "should be considered the first effective date for Applicant to challenge the 2013 decision."

### Procedural facts about the Fund’s practices and Applicant’s reliance
- At the time of Applicant’s appointment in 2013, the Fund did not provide any explanation or discussion of his starting grade.
- The staff orientation process "intentionally misguided people’s attention away from the grade issue."
- The Fund has an information advantage in the hiring process.
- Applicant "trusted the Fund’s procedures and believed in good faith that the [F]und treated everyone in a fair and uniform way."

### Relation between the 2013 and 2016 challenges
- The Application challenges both the 2016 and 2013 decisions because they are "related and influenced by the same underlying factor."
- Applicant argues that the two challenges, when "considered jointly, . . . can reinforce each other to better show the underlying discriminatory act of the Fund."
- The Fund seeks to dismiss part of the Application because, in its view, that part "lends credence to the alleged pattern of discriminatory behavior."

### Motion to Dismiss in Part — admissibility framework and precedent
- Principal question raised by the Motion to Dismiss in Part: Shall the Tribunal summarily dismiss that part of the Application challenging the decision to assign Applicant a Grade of A11 when he joined the Fund as a staff member in 2013?
- The Tribunal must decide whether the Motion shall be admitted and, if so, whether it shall be granted.
- This is only the second time the Tribunal has been asked to dismiss part of an application in advance of a full exchange of pleadings; the earlier case cited is Ms. “PP”, Order No. 2019-1 (October 10, 2019).
- Rule XII provides: “Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is clearly inadmissible.” (Rule XII(1).)
- The Tribunal in Ms. “PP”, Order No. 2019-1 concluded that Rule XII does not exclude the possibility of a motion to dismiss in part and admitted such a motion in the "unusual context" of expedited proceedings, but declined to decide the merits of that motion, dismissing it without prejudice.

### The "clearly inadmissible" standard (Rule XII) and its implications
- Rule XII allows summary dismissal only if an application is “clearly inadmissible.”
- Legislative history and Commentary indicate dismissal at threshold is for applications that are clearly irreceivable or devoid of merit; comparable standards exist in other international administrative tribunals (e.g., ILOAT Article 8(3), WBAT Rule 7(11)).
- Tribunal jurisprudence (e.g., Baker et al., IMFAT Judgment No. 2005-3) underscores that the threshold for admissibility is "not steep" and stresses protection of Applicants’ right to be heard.

### Applying Rule XII to motions to dismiss in part — Tribunal’s approach
- Transposing summary dismissal principles for an entire application to a part of an application is "fraught" because of potential relationships between the targeted claim and remaining claims.
- A motion to dismiss in part raises questions about relationships between the targeted claim and other claims that may not be apparent prior to a full exchange of pleadings and closure of the record.
- The risk of an erroneous threshold decision is heightened when only part of an application is targeted; potential efficiency gains may be offset by the need to revisit facts and arguments later.
- The Tribunal will treat admission of motions to dismiss in part as the exception rather than the rule and will weigh efficiency, fairness, and the potential to dispose reliably of admissibility, applying the "clearly inadmissible" standard of Rule XII.
- Only if admitting the motion "will serve the interests of justice" will the Tribunal admit a motion to dismiss in part.

### Application of the standard to the pending Motion
- Both parties agree fairness and efficiency are key considerations.
- Both parties also agree the 2013 starting grade claim and the 2016 non-promotion claim are closely intertwined.
- Respondent (the Fund) contends the 2013 claim is a "major part" of the Application, overlaps in facts and arguments with the 2016 claim, and thus supports a threshold decision on exhaustion of Article V in respect of the 2013 claim.
- Applicant contends the inter-relatedness supports hearing both claims together, arguing that the Fund seeks to remove part of one application because "it lends credence to the pattern of behavior" alleged and that for "fairness and efficiency, one application should be considered by the Tribunal in its entirety."
- The Tribunal concludes that where claims are closely intertwined, it will rarely serve efficiency or fairness to admit a motion to dismiss one of the claims at the outset; following a full exchange on the merits, the Tribunal will be better positioned to decide whether the claim is indeed inadmissible.

*Administrative Tribunal for the International Monetary Fund.*

### 57. Furthermore, in the instant case, the issue of the inter-relatedness of the claims is salient

### j2020-1 - 57. Furthermore, in the instant case, the issue of the inter-relatedness of the claims is salient

### Inter-relatedness of the claims and admissibility
- Facts and arguments pertinent to the admissibility of a claim are intertwined with facts and arguments pertinent to the determination of the merits of the application as a whole.
- Where such intertwining exists, concerns about piecemeal review and reliable disposition of admissibility are heightened.
- Addressing whether Applicant has met the exhaustion requirement of Article V in respect of his challenge to the 2013 starting grade decision "requires the Tribunal to engage in a thorough examination of the facts of the case in the light of the applicable law."
- Such analysis may include answering questions such as:
  - when Applicant may be said to have launched his challenge to the decision he seeks to contest; and
  - whether there are "exceptional circumstances" that may excuse a delay.
- These questions are most reliably answered after a full review of the record and the parties’ arguments on the Application as a whole.

### Tribunal jurisprudence and precedent
- The Tribunal’s summary dismissal jurisprudence “counsels against the piecemeal review of related claims.” Examples cited include:
  - Ms. “PP”, Order No. 2019-1, para. 51: dismissing, without prejudice, motion to dismiss in part because it will “better serve the interests of justice to decide the issues of the case, including [the issue raised by the motion], following a full briefing on the merits of the Application.”
  - Mr. “LL”, Order No. 2016-1, paras. 5-9: suspending pleadings, rather than granting motion for summary dismissal, until “questions concerning the legal relationship” among several issues have been addressed in the first instance through the various channels of review.
  - Ms. C. O’Connor v. International Monetary Fund, IMFAT Judgment No. 2010-1 (February 8, 2010), para. 42: granting summary dismissal of an application raising a claim “closely allied” with another claim that remained pending in channels of administrative review, without prejudice to applicant’s right to bring a new application raising both claims following exhaustion of the related claim.
- The approach in Ms. “GG”, IMFAT Judgment No. 2013-3 (October 8, 2013), is instructive:
  - Respondent sought summary dismissal of an application raising multiple claims; one claim alleging a pattern of harassment, retaliation and discrimination was still pending in the Grievance Committee.
  - The applicant asserted that “harassment, retaliation, and discrimination are part of all of the contested decisions before the Tribunal,” infecting other contested decisions.
  - The Tribunal declined to rule on admissibility of claims that were “closely allied” with the unexhausted claim and granted summary dismissal without prejudice to the applicant’s right to submit a new application re-asserting all claims and without prejudice to Respondent’s right to invoke the asserted grounds for dismissal in pleadings on the merits.
- Subsequent litigation in Ms. “GG” (No. 2), IMFAT Judgment No. 2015-3 (December 29, 2015), para. 169, confirms that Respondent may challenge the admissibility of individual claims while answering others on the merits.
- In several cases, the Fund has raised threshold defenses of inadmissibility while alternatively answering the merits of an application or a claim (examples cited).

### Conclusions of the Tribunal
- It will be the exception and not the rule to admit a motion to dismiss summarily part of an application prior to a full exchange on the merits of the application as a whole.
- In determining whether to admit a motion to dismiss in part, the Tribunal will weigh factors including efficiency, fairness, and the potential for reliably disposing of the issue of admissibility, applying the “clearly inadmissible” standard of Rule XII.
- After weighing these factors, the Tribunal decides that it will not serve the interests of justice to take a decision on the admissibility of Applicant’s challenge to the 2013 starting grade decision in advance of a full exchange of pleadings on the merits of the Application as a whole because:
  - Applicant’s two principal claims are intertwined both in fact and in law; and
  - the issue of the inter-relatedness of the claims is pertinent to one of the arguments Applicant raises in support of the admissibility of the claim that Respondent seeks to dismiss by its Motion.
- The Tribunal is not persuaded that this case presents “circumstances in which a Motion to Dismiss in [P]art will be admissible.” Ms. “PP”, Order No. 2019-1, para. 49.
- Unlike the “unusual context” presented in Ms. “PP”, there is no ground here to depart from the usual rule that a Rule XII motion will seek the summary dismissal of an application in its entirety rather than in part.

### Decision
- The Motion to Dismiss in Part is dismissed as inadmissible, without prejudice to Respondent’s right to raise in its pleadings on the merits its challenge to the admissibility of part of the Application.
- The proceedings on the merits shall resume in accordance with the Tribunal’s Rules of Procedure.
- The Fund’s Answer shall be due forty-five days from notification of this Judgment.
- Decision issued unanimously by:
  - Catherine M. O’Regan, President
  - Andrés Rigo Sureda, Judge
  - Edith Brown Weiss, Judge
- Signed:
  - /s/ Catherine M. O’Regan, President
  - /s/ Celia Goldman, Registrar
- Location and date: Washington, D.C. November 2, 2020

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_Source: https://www.imf.org/-/media/files/imfat/j2020-1.pdf_