## JUDGMENT No. 2021-3 — INTRODUCTION AND FINDINGS ## Source details **Canonical URL:** [JUDGMENT No. 2021-3 — INTRODUCTION AND FINDINGS](https://www.imf.org/-/media/files/imfat/j2021-3.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2021-3.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2021-3.pdf.json) --- ### Case overview and parties’ positions - Event: Administrative Tribunal of the International Monetary Fund adjudged an Application by Mr. “SS” against the International Monetary Fund. - Tribunal composition: Judge Catherine M. O’Regan, President; Judges Andrés Rigo Sureda and Nassib G. Ziadé. - Alleged period of wrongdoing: October 2, 2017 to October 29, 2018. - Parties’ stipulation: Applicant has a hearing impairment constituting a disability under the Fund’s discrimination and reasonable accommodation policies. - Applicant’s principal allegations included: - Denial of reasonable accommodations for his disability (meetings, deadlines, social events, building safety arrangements). - Disability-based discrimination (FY2018 Annual Performance Review, Book Project second chapter, office relocation). - Retaliation for seeking accommodations, alleging discrimination, and raising ethics complaints. - Breach of a Partial Mediation Agreement relating to accommodations. - Pattern of substantively unfair treatment including stereotyping and micro-inequities. - Procedural unfairness in Administrative Review and Grievance Committee proceedings. - Respondent’s position: - Denies each allegation and asks Tribunal to deny all relief. - Asserts Fund provided accommodations beyond Health Services Department recommendations, mediation agreements, and safety needs. - Contends contested actions (APR comments, dropping second chapter, office relocation) resulted from Applicant’s poor performance and aggressive insubordination. ### Relief sought by Applicant (selected items preserved exactly) - Creation by the Fund of a Disability Coordinator position with expertise in disability and reasonable accommodation matters and specified duties. - Changes to APRs, including Applicant’s FY2018 APR, so that persons with disabilities “only be held accountable for areas that are within their control” and reviews “reflect the performance that could have been achieved without the negative impact of retaliation, discrimination (failure to accommodate) and unfair treatment”. - Removal from Applicant’s personnel record “of any reports . . . related to his disabilities, including any medical files still held outside HSD, to eliminate any reputational harm from his disabilities and his requests for accommodation.” - Compensation for “career and reputational damages,” including non-publication of Applicant’s second chapter. - Revision of the online version of the Fund’s publication to include Applicant’s second chapter, and three months’ net salary as compensation for unfair treatment in respect of that chapter. - Work responsibilities corresponding to the job standards for Applicant’s position and three months’ net salary as compensation for career and reputational prejudice. - Compensation for emotional distress in the amount of $100,000, to be transferred to a charity of the Applicant’s choice. - Reimbursement of legal fees and costs incurred by Applicant (totaling $356,944.43 as of the date of the Reply and to be supplemented thereafter). ### Procedural history — key dates - July 31, 2020: Applicant filed the Application with the Administrative Tribunal. - August 5, 2020: Application transmitted to Respondent. - September 21, 2020: Respondent filed its Answer on the merits. - October 23, 2020: Applicant filed his Reply. - November 30, 2020: Respondent filed its Rejoinder. - August 27, 2021: Tribunal requested Applicant provide Fund’s May 1, 2020 decision accepting Grievance Committee recommendations; Tribunal granted Applicant’s request for oral proceedings limited to counsel arguments. - October 19–21, 2021: Tribunal met to adjudge the Application; oral proceedings held on October 20, 2021 by videoconference. - Decision: Washington, D.C. December 27, 2021. ### Procedural rulings and interlocutory matters - Anonymity: Tribunal provisionally granted Respondent’s request for anonymity for all persons concerned; oral proceedings of October 20, 2021, were held in private. Tribunal applied Rule XXII, para. 4 and prior jurisprudence in balancing privacy and transparency. - Mediation confidentiality: March 30, 2018 email admitted in redacted form solely to establish timing of Supervisor’s awareness of Applicant’s mediation request; substantive bilateral mediator communications excluded under Mediation Rules, Section 4.05.1–4.05.2. - Document strikes: - Exhibit 30 (HSD correspondence): Tribunal declined to strike any portion. - Exhibit 190 (OII correspondence): Tribunal declined to strike; relevant to timing of protected activity. - Exhibit 263 (Mediator correspondence): Tribunal granted Respondent’s request and struck the exhibit in its entirety. ### Source attribution *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2021-3 (December 27, 2021).* --- ### Factual background, timeline, and implemented accommodations - Applicant’s disability and initial disclosures: - Diagnosed with moderate to severe hearing loss in both ears in August 2015; began wearing personal hearing aids full-time in September 2015. - Mid-September 2017: Applicant first apprised Supervisor of hearing issues but did not seek disability certification at that time. - October 2, 2017: Follow-up hearing test reportedly established a “permanent but stable” hearing loss; Applicant informed Supervisor of temporary need to send hearing aids for reprogramming. - November 8, 2017: Applicant submitted medical documentation to HSD; HSD certified Applicant had a disability that should be accommodated and suggested contacting the Corporate Services and Facilities Department officer (CSF Officer). - CSF/HSD initial steps and accommodations: - November 13, 2017: CSF Officer suggested five action items including provision of a white-noise machine (implemented), turning off VAV air flow motor (done later that day), adding emergency lighting, meeting accommodations, and event accommodations. - November 20, 2017 HSD meeting recommended meeting accommodations: physical plus dial-in participation, use of Applicant’s smart listening pen, auditory training, white-noise software on laptop. - December 4, 2017: Audiologist verified listening pen compatibility once HQ2 renovations complete. - Book Project timeline and performance interactions: - Fall 2016: Supervisor circulated outlines; Applicant expected to lead book, write two chapters, supervise others. - May 2017: Supervisor requested timeline; Applicant aimed for seven draft chapters by mid-September. - Mid-September 2017: Applicant missed deadline; first chapter drafts delivered October 13–26, 2017; second chapter promised mid-December 2017, first draft delivered March 12, 2018. - Supervisor progressively limited Applicant’s role, gave extensive feedback, and on October 24, 2017 warned she was “leaning towards dropping [Applicant’s second chapter] at this stage.” - Safety and shelter-in-place events: - March 15, 2018 shelter-in-place drill: Applicant refused escorted relocation; later follow-up clarified strobe light behavior for drills and additional safety measures were discussed. - May 3, 2018: Fire and Life Safety Manager recommended office reconfiguration, instructed fire wardens to assist Applicant, and explored additional notification options. - Mediation and Partial Mediation Agreement (PMA): - Mediation initiated March 14, 2018; joint sessions began April 30, 2018. - PMA dated May 25, 2018 comprised twelve points including emergency lighting, HSD appointments, meeting accommodations, sharing information appropriately with colleagues, meeting etiquette, meeting summaries as needed, social-event accommodations, extension for two book chapters with four-week deadline for second chapter (approximately June 18th), assignment of an editor, and follow-up mediation by end of June. - Additional points recorded July 31, 2018 included Ombudsman assistance, fire warden notifications, co-author option for second chapter with Applicant to inform Supervisor by mid-August whether he would accept a co-author, and emphasis on professional communication with primary communication by email going forward. --- ### Administrative Review, Grievance Committee, and outcomes - Administrative Review: - Applicant filed Administrative Review request August 14, 2018; amended September 5, 2018. - HRD Deputy Director conducted review and closed it on January 17, 2019 with memorandum finding no violations of Fund law by Management and concluding managers had “generally granted [Applicant’s] requests for accommodations” and acted for proper business reasons. - Grievance Committee: - Applicant filed Grievance in October 2018, amended February 22, 2019, alleging discrimination, retaliation, failure to accommodate, and hostile work environment. - Committee proceedings included briefs and weeklong oral hearings with testimony from fifteen individuals; parties stipulated Applicant required reasonable workplace accommodations. - Report and Recommendation dated March 19, 2020 concluded Applicant had not substantiated his challenges and recommended Grievance be denied. - Fund Management accepted the Grievance Committee’s recommendations on May 1, 2020. - Filing with Tribunal: - Applicant filed Application with IMFAT on July 31, 2020. --- ### Applicable Fund law and policy excerpts relied upon - Time period covered: October 2, 2017 to October 29, 2018. - Staff Handbook Chapter 11.01, Section 5 (Discrimination and Reasonable Accommodation): - 5.1 Prohibition of Discrimination: employment, classification, promotion, and assignment to be made without discriminating because of age, creed, disability, ethnicity, gender, nationality, race or sexual orientation, subject to institutional needs. - 5.3 Provisions of Reasonable Accommodations: Fund will provide reasonable accommodation for personnel with a disability, at their request, to enable them to perform the essential functions of their job; accommodation not reasonable if it causes undue hardship; Fund may decide between reasonable options. - Annex 11.01.3 (Discrimination Policy) and Appendix 2: defines discrimination, examples, managerial responsibilities, and distinguishes discrimination from other inappropriate workplace conduct. - Annex 11.01.6 (Retaliation Policy) and Chapter 11.01, Section 11.1: prohibition of retaliation for raising ethics complaints, filing grievances, or participating as witnesses; retaliation is misconduct and could lead to disciplinary measures. - Mediation Rules (relevant sections): Voluntariness, Confidentiality (4.05.1–4.05.2), Mediator’s destruction of notes (4.05.3–4.05.4), Memorandum of Understanding and enforcement (4.07.1–4.07.2), Protection against reprisal (6). --- ### Tribunal analysis and principal factual findings on accommodations - Timing and process: - Applicant sought formal certification on November 8, 2017; HSD provided same-day certification and CSF Officer met Applicant five days later, suggesting actions and implementing several measures immediately. - Tribunal found reasonable reliance by managers on accommodation plans Applicant agreed with HSD and CSF Officer in November 2017. - Implemented accommodations and efforts: - White-noise machine provided; VAV motor turned off; emergency lighting pursued; listening pen use recommended; fire and life safety adjustments made; Department agreed on meeting etiquette and quiet periods for events; extensions granted for book chapters per PMA. - Fire and Life Safety Manager and Chief of Security testified to substantial additional effort for Applicant’s case compared to typical cases. - Applicant engagement affecting implementation: - Applicant frequently declined to take seat at table or use listening pen at senior management meetings; did not ask colleagues to repeat information; did not share information about hearing loss as intended under PMA item 4. - Applicant did not confirm by mid-August 2018 whether he would accept a co-author for second chapter, as required under July 30, 2018 agreement. - Tribunal conclusions on accommodations: - Tribunal found Fund engaged in exhaustive, good-faith interactive process and concluded: “The Tribunal finds no merit to Applicant’s claims that the Fund failed its duty to provide reasonable accommodations for his disability.” --- ### Tribunal analysis and conclusions on discrimination, retaliation, and mediation breach - Discrimination claims examined on three grounds: - (i) Dropping second Book Project chapter: - Applicant did not show discriminatory animus; chapter dropped due to quality concerns, delays, and Applicant’s unwillingness to accept a co-author; burden of proof not met. - (ii) FY2018 APR reference to “open communication skills”: - Tribunal found competency referred to emotional intelligence and timeliness of communication; revised APR language in early August 2018 stated: “[Applicant] should ensure that he communicates with his supervisor in a timely way when his work is delayed. He would also benefit from efforts to demonstrat[e] openness to feedback on his performance.” - Prior performance history showed similar development comments; Tribunal found no discriminatory effect tied to Applicant’s hearing disability. - (iii) Office location and safety arrangements: - Office relocation aimed to address Supervisor’s safety concerns and reflect grade-level office availability; alternative office options were offered and Applicant declined immediate move; Tribunal found no discriminatory motive and no evidentiary basis for adverse impact claims. - Retaliation claims — three-part test applied (protected activity; adverse action; causal link): - Controlling law: Tribunal decided to apply the Retaliation Policy version in effect during the case period (not February 2019 amendments). - March 29, 2018: Tribunal found Applicant’s mediation request was protected activity but advance scheduling requirement was not an adverse action and no causal link shown. - June 22, 2018: Tribunal found Applicant engaged in protected activity but Supervisor’s responses were motivated by Applicant’s aggressive conduct; no causal link to protected activity. - August 16, 2018 (dropping chapter): Tribunal found chapter was dropped pursuant to July 30 agreement and Applicant’s failure to accept co-author by mid-August; Applicant’s August 14 Administrative Review request postdated the operative decision-making; no causal link shown. - Other asserted instances across October 2, 2017–October 22, 2018: Tribunal found either no protected activity, no adverse action, or absence of causal link. - Tribunal conclusion: Applicant failed to prove retaliation; claims “are without merit.” - Breach of Partial Mediation Agreement: - Meeting etiquette and summaries: PMA required summaries “or when necessary in writing”; Tribunal found brief written summaries were provided and Supervisor reasonably moderated meetings; no breach substantiated. - Dropping second chapter: PMA item 10 set a timeline and July 30 follow-up clarified co-author option with mid-August confirmation; Applicant’s refusal to accept a co-author and the Department’s assessment that rescuing chapter required disproportionate effort justified dropping; Tribunal found no breach. - Pattern of unfair treatment, stereotyping, and micro-inequities: - Tribunal reviewed alleged remarks and conduct; found many alleged characterizations misstate record and that early comments were supportive rather than stereotypical. - Social-event examples did not establish a pattern of marginalization; Division made accommodations (muting World Cup games, changing venues) and Applicant often declined to request accommodations in advance. - Alleged “legitimate expectations” regarding publication were not supported; publication decisions remain management discretion tied to quality and restructuring needs. - Application of an “outdated” Retaliation Policy: Tribunal held governing policy is the one in effect during the relevant time period. --- ### Procedural fairness findings - Administrative Review and Grievance Committee: - HRD Administrative Review (closed January 17, 2019) found no violations; Tribunal reviewed record de novo and found Administrative Review considered June/July 2018 actions and did not omit material decisions. - Grievance Committee proceedings included extensive witness testimony and did not produce procedural unfairness warranting reversal. - Administrative Review typo (referring to “three occasions” rather than “two”) acknowledged and corrected by HRD; Tribunal found no compensable harm. --- ### Tribunal conclusions and decision - Principal conclusions: - Applicant did not establish Fund failed to provide reasonable accommodations for his disability. - Applicant did not establish discrimination on the basis of disability. - Applicant did not establish retaliation; causal link between protected activities and adverse actions was not shown. - Applicant did not substantiate breach of Partial Mediation Agreement. - Applicant did not demonstrate a pattern of substantively unfair treatment or procedural unfairness justifying relief. - Decision: - The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Mr. “SS” is denied. - Signatories: Catherine M. O’Regan, President; Andrés Rigo Sureda, Judge; Nassib G. Ziadé, Judge; /s/ Catherine M. O’Regan, President; /s/ Celia Goldman, Registrar. - Decision date and location: Washington, D.C. December 27, 2021. *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2021-3 (December 27, 2021).* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Case overview - The Administrative Tribunal of the International Monetary Fund adjudged an Application by Mr. “SS” against the International Monetary Fund. - The Tribunal was composed, for this case, of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Nassib G. Ziadé. - Applicant alleged wrongdoing arising from the period from October 2, 2017 to October 29, 2018. - Parties stipulated that Applicant has a hearing impairment constituting a disability under the Fund’s discrimination and reasonable accommodation policies. - Applicant’s principal allegations: - Denial of reasonable accommodations for his disability (meetings, deadlines, social events, building safety arrangements). - Other disability-based discrimination (FY2018 Annual Performance Review, work on a two‑chapter Book Project, office relocation). - Retaliation for seeking accommodations, alleging discrimination, and raising ethics complaints. - Breach of a Partial Mediation Agreement relating to accommodations. - Pattern of substantively unfair treatment including stereotyping and micro-inequities. - Procedural unfairness in Administrative Review and Grievance Committee proceedings. ### Relief sought by Applicant - Creation by the Fund of a Disability Coordinator position with expertise in disability and reasonable accommodations. - Implementation of changes to APRs, including Applicant’s FY2018 APR, so that persons with disabilities “only be held accountable for areas that are within their control” and reviews “reflect the performance that could have been achieved without the negative impact of retaliation, discrimination (failure to accommodate) and unfair treatment”. - Removal from Applicant’s personnel record of “any reports . . . related to his disabilities . . . to eliminate any reputational harm from his disabilities and his requests for accommodation”. - Compensation for career and reputational damages, including due to non-publication of Applicant’s second chapter for the Book Project. - Revision of the online version of the resulting book to include Applicant’s second chapter and three months’ net salary as compensation for unfair treatment in respect of that chapter. - Work responsibilities corresponding to the job standards for Applicant’s position and three months’ net salary as compensation for career and reputational prejudice. - Compensation for emotional distress in the amount of $100,000, to be transferred to a charity of the Applicant’s choice. - Legal fees and costs as the Tribunal may award under Article XIV, Section 4 of the Tribunal’s Statute if the Application is well-founded in whole or in part. ### Respondent’s position - Respondent denies each allegation and asks the Tribunal to deny all relief. - Respondent asserts the Fund provided accommodations above and beyond Health Services Department recommendations, mediation agreements, and safety needs. - Respondent contends Applicant suffered no discrimination, retaliation, or unfair treatment and that contested actions (comments in FY2018 APR, dropping the second chapter, office relocation) resulted from Applicant’s poor performance and aggressive insubordination. ### Procedural history and key dates - July 31, 2020: Applicant filed the Application with the Administrative Tribunal. - August 5, 2020: Application transmitted to Respondent. - August 13, 2020: Registrar circulated a notice summarizing issues raised in the Application. - September 21, 2020: Respondent filed its Answer on the merits. - October 23, 2020: Applicant filed his Reply. - November 30, 2020: Respondent filed its Rejoinder. - August 27, 2021: Tribunal requested Applicant provide Fund’s May 1, 2020 decision accepting Grievance Committee recommendations; Tribunal granted Applicant’s request for oral proceedings limited to counsel arguments. - September 8, 2021: Applicant submitted the requested May 1, 2020 decision. - October 7, 2021: Tribunal requested Respondent produce specified Staff Handbook provisions in effect for the period of the case. - October 12, 2021: Respondent submitted additional documents requested by the Tribunal. - October 19–21, 2021: Tribunal met to adjudge the Application; oral proceedings were held on October 20, 2021 by videoconference. - The Tribunal decided to hold its session by electronic means in light of the COVID-19 pandemic and the Fund’s work-from-home directive, in accordance with Article XI of the Statute. ### Procedural rulings and interlocutory matters - Request from another staff member (post-August 13, 2020 Registrar notice): The Registrar was directed not to convey that staff member’s name and email to Applicant; the Tribunal observed the Registrar must safeguard confidentiality and remain neutral and noted Rule XIV (Intervention) and Rule XV (Amicus Curiae) as channels for individuals to bring information to the Tribunal. - Applicant’s request for oral proceedings with additional testimony: Applicant requested oral argument and presentation of additional sworn testimony; Respondent opposed. Tribunal granted oral proceedings limited to counsel arguments pursuant to Rule XIII, para. 6. - Respondent’s request for anonymity for “all concerned in this case” under Rule XXII: Respondent sought anonymity for Applicant and all concerned, asserting circumstances (challenge to performance assessment, allegations of staff misconduct, and health issues) warrant anonymity; Applicant contested a compelled anonymity. ### Scope of adjudication (matters previewed for substantive consideration) - Discrimination and reasonable accommodation claims: - Whether the Fund failed to provide reasonable accommodations for Applicant’s disability; specific analysis divided into initial accommodations in late 2017, further accommodations in 2018, and asserted deficiencies. - Whether the Fund otherwise discriminated against Applicant (second Book Project chapter, FY2018 APR references, office location and safety arrangements). - Retaliation claims: - Standards applicable and analysis of alleged retaliation on specified dates including March 29, 2018; June 22, 2018; August 16, 2018; and other instances. - Breach of Partial Mediation Agreement: - Standards and alleged breaches regarding meeting etiquette and meeting summaries, and the dropping of the second Book Project chapter. - Unfair treatment claims: - Standards and analysis of alleged stereotypes and micro-inequities; alleged violation of legitimate expectations regarding two book chapters; alleged improper application of an outdated Retaliation Policy. - Procedural fairness claims regarding Administrative Review and Grievance Committee proceedings, including alleged failures to review a July 3, 2018 decision and references to three instances of verbal abuse. *Source: Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2021-3, INTRODUCTION.* ### 1. In a ccordance with Rule VII, Pa ragraph 2(j), a n Applicant may request in his ### 1. In a ccordance with Rule VII, Pa ragraph 2(j), a n Applicant may request in his ### Anonymity requests and applicable rules - Rule VII, Paragraph 2(j): an Applicant may request in his application that his name not be made public by the Tribunal. - Rule VIII, Paragraph 6: the Fund may request in its answer that the name of any other individual not be made public by the Tribunal. An intervenor may request anonymity in his application for intervention. - Rule VIII, Paragraph 5, and Rule IX, Paragraph 6: the parties shall be given an opportunity to present their views to the Tribunal in response to a request for anonymity. - Rule XXII, para. 4: “The Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual.” - Tribunal jurisprudence: anonymity is an “exception to the general rule of making public the names of parties to a judicial proceeding” and the burden rests with the party seeking anonymity to show “good cause.” (citing Mr. “HH” and Ms. “AA”) ### Tribunal findings and rationale on anonymity in this case - By decision letter of August 27, 2021, the Tribunal provisionally granted Respondent’s request for anonymity for all persons concerned; the oral proceedings of October 20, 2021, were held in private. - The case is the first instance in which the Tribunal considers whether to accord anonymity to an applicant over the applicant’s objection; the Tribunal must balance privacy and transparency with due regard to the parties’ submissions and relevant Tribunal jurisprudence. - The Tribunal has found “good cause” to grant anonymity in three main types of circumstances: cases challenging performance assessments; cases involving allegations of staff misconduct, including harassment and retaliation; and cases in which the health of the applicant is at issue. (summarized in Mr. “KK”, IMFAT Judgment No. 2016-2, para. 16) - The Tribunal concluded that institutional interests of the Fund—protecting the privacy of staff accused of misconduct and preserving the integrity of performance assessment processes such as the APR—constitute “good cause” (Rule XXII, para. 4) to protect the identity of all persons concerned, including Applicant. - The Tribunal granted Respondent’s request for anonymity for all persons concerned, including Applicant, noting tension between Applicant’s stated willingness to disclose his disability and his simultaneous request for removal of disability-related reports from his personnel record. ### Document production and mediation confidentiality (Rule XVII) - Applicant requested additional documentation under Rule XVII to counter Respondent’s defense to a retaliation claim (timing of Supervisor’s knowledge of Applicant’s mediation request). - Applicant asserted a March 30, 2018 email between the Supervisor and the Fund’s Mediator undercuts Respondent’s defense; Respondent had inadvertently produced and then withdrawn the email during Grievance Committee proceedings. - Applicant alternatively requested calendar information showing when the Supervisor met with the Mediator if the email could not be used due to mediation confidentiality. - Respondent opposed Applicant’s request for further discovery as belated and unnecessary. - By decision letter of August 27, 2021, the Tribunal requested (i) the applicable version of the Mediation Rules and (ii) for in camera review, the email of March 30, 2018; Respondent submitted these materials on September 10, 2021. - The Tribunal recognizes the importance of protecting the confidentiality of mediation proceedings consistent with the Mediation Rules, particularly substantive bilateral communications between each party and the Mediator. - Mediation Rules, Section 4.05.1: The fact of participation in a mediation and the proceeding of the mediation – including any written submissions, positions taken by the parties, views expressed, and admissions or suggestions made by the parties or the Mediator in the course of the mediation – shall be strictly confidential. Positions taken by the parties during any stage of the mediation process shall also be strictly confidential and may not be disclosed or used for any other purposes, including a formal dispute proceeding, except with the consent of the other party and the Mediator. - Mediation Rules, Section 4.05.2: Exceptions include when the parties explicitly agree that otherwise confidential information may be shared, and when a party needs to share the content of the Memorandum of Understanding for legal advice before signing, or on its enforcement or implementation. - The Tribunal noted that both parties admit a mediation took place and neither argued that the fact of the mediation should be confidential in these proceedings; the parties have effectively accepted that the fact of the mediation is not confidential here. - The Tribunal determined that the March 30, 2018 email shall be admitted into the record in redacted form, solely for establishing the timing of the Supervisor’s awareness of Applicant’s mediation request; all other content in the email is redacted and excluded from the record. Redacted copies were provided to the parties. ### Respondent’s request to strike documents from the record - Respondent’s Rejoinder (Table 3) identified over a hundred documents submitted by Applicant that were not part of the Grievance Committee record; fourteen were flagged as emails objected to by the Fund at the Grievance Committee hearing or other confidential communications (e.g., OII, Ombudsperson, bilateral conversations with Mediator). - Respondent clarified on September 10, 2021, that it sought to strike three flagged documents: Exhibit 30 (HSD correspondence), Exhibit 190 (OII correspondence), and Exhibit 263 (Mediator correspondence). - Applicant opposed striking the three documents but offered stipulations as to their import. - Respondent declined Applicant’s proposed stipulations and affirmed its motion to strike; it sought to strike entirety of Exhibits 190 and 263, and portions of Exhibit 30 showing Applicant’s private communications with HSD. - The Tribunal reserved decision on the motion to strike until after oral proceedings and addressed each document: - Exhibit 30 (HSD correspondence): Tribunal declines to strike any portion; Applicant may waive confidentiality of his own health information and the Tribunal will consider the import in context of the record. - Exhibit 190 (OII correspondence): Tribunal declines to strike; the fact and timing of Applicant’s complaint to OII are relevant to retaliation claims and Exhibit 190 may be considered as evidence of protected activity. - Exhibit 263 (mediation correspondence): Tribunal grants Respondent’s request and strikes Exhibit 263 in its entirety, reiterating that substantive bilateral communications with the Mediator are strictly confidential and cannot be unilaterally waived. ### Factual background: Applicant, Book Project, and disability accommodations - Applicant served in the relevant time period in one of the Fund’s divisions (the “Division”). - Applicant states he was diagnosed with moderate to severe hearing loss in both ears in August 2015 and began wearing personal hearing aids full-time in September 2015. - Fall 2016: Supervisor circulated outlines for the Book Project that Applicant was expected to lead with two junior Division staff and an outside collaborator; Applicant’s role: lead the book overall, write two chapters, supervise and coordinate other chapters. - May 2017: Supervisor asked Applicant for a timeline: “[p]lease come up with a schedule for not later than the first week of September” since “[t]he first draft book has to be ready by the fall.” Applicant responded “we can aim to have seven draft chapters . . . by mid-September.” - September 2017: Supervisor received two draft chapters from junior staff, but neither of the two chapters due from Applicant. - Mid-September 2017: Applicant first apprised the Supervisor that he had hearing issues; he did not seek disability certification or accommodations at that time. - October 2, 2017: Applicant’s follow-up hearing test reportedly established a “permanent but stable” level of hearing loss; Applicant informed Supervisor that his hearing aids would have to be sent away for reprogramming and that his audiologist recommended he use a white-noise machine in his office. - November 8, 2017: Applicant submitted medical documentation to HSD regarding his hearing loss and requested accommodation; HSD certified that Applicant had a disability that should be accommodated and suggested Applicant contact the Corporate Services and Facilities Department officer serving as contact for workplace accommodations (the “CSF Officer”). - November 13, 2017: CSF Officer met with Applicant and suggested five action items, including giving him a white-noise machine (done immediately), turning off the “VAV” air flow motor in his office (done later that day), adding an emergency light near his office, speaking with the Department’s Senior Personnel Manager (“SPM”) and Office Manager (“OM”) about accommodations for meetings, and providing accommodations for “[Department] or IMF type events.” Applicant thanked the CSF Officer for “our discussion, the summary of our meeting and the prompt follow-up,” stating that “these are all very helpful!” - November 13, 2017: CSF Officer wrote to the SPM and OM that Applicant “has been diagnosed with hearing loss in both ears and requires accommodation,” suggested use of a listening “pen” in larger meetings and limiting music or videos at Department events. - November 13–14, 2017: SPM raised questions about proposed accommodations and asked whether the matter could be shared with the Supervisor; on November 14, CSF Officer responded these were “merely suggestions” while awaiting HSD’s final review and that the matter was fine to discuss with the Supervisor “with the stipulation” that Applicant was continuing to work with HSD. *International Monetary Fund Administrative Tribunal judgment excerpts and Tribunal decision letters referenced in the record.* ### 47. On November 15, 2017, Applicant wrote to the CSF Officer to thank her again for her ### j2021-3 - 47. On November 15, 2017, Applicant wrote to the CSF Officer to thank her again for her ### Accommodation requests and CSF/HSD responses - On November 13, 2017 the VAV motor had been turned off; combined with the white-noise machine this "appears to be helpful." (Applicant communication of November 15, 2017.) - CSF Officer explained that the emergency light "will take some time to put up as we need to run some electrical to the area." (CSF Officer response to Applicant, November 15, 2017.) - November 20, 2017 meeting with HSD discussed accommodations for work meetings, including: - physical plus dial-in participation; - use of his smart pen; - auditory training to increase Applicant’s visual-auditory comprehension; - white-noise software on Applicant’s laptop. - Applicant thanked HSD for "very helpful advice, suggestions and references" and followed up with the CSF Officer; requested a follow-up meeting the following week (email, November 20, 2017). - CSF Officer met Applicant on November 27, 2017 and informed SPM that some technology "will not be available until after completion of the new conference rooms in HQ2"; recommended use of Applicant’s listening "pen" in the meantime and noted "other accommodations, such as adding in emergency lighting, [have] been taken care of by facilities." SPM relayed information to Supervisor that day. - On December 4, 2017 Applicant confirmed his audiologist had verified that his listening pen would work to connect his hearing aids to audio-visual systems once renovations were complete. ### Continued work on the Book Project - Applicant missed mid-September 2017 target for first book draft; Supervisor pressed for submission. - Applicant submitted first draft of first chapter in installments between October 13-26, 2017. - Supervisor provided extensive feedback, raising fundamental structural and thematic questions and giving specific line edits starting on receipt of Applicant’s first section. - October 24, 2017 Supervisor asked Applicant to prepare an updated timeline and noted she was "leaning towards dropping [Applicant’s second chapter] at this stage." - October 26, 2017 Applicant promised to have first chapter re-written by November 20, and deliver second chapter by mid-December 2017. - Supervisor informed Applicant he would no longer have a leading role on the Book Project and would be limited to the two assigned chapters (meeting, October 26, 2017). - Applicant submitted a first draft of the second chapter on March 12, 2018, three months after the mid-December 2017 commitment; Supervisor provided written feedback on March 22, 2018 including edits on first twenty pages and offered to explain further in person. - March 29, 2018 encounter between Applicant and Supervisor became contentious; Supervisor stated Applicant could no longer enter her office without scheduling a meeting in advance. - Summer 2018: Supervisor proposed dropping or co-authoring Applicant’s second chapter; Applicant declined to indicate a preference. On August 17, 2018 Supervisor informed Applicant his second chapter would be dropped and requested "urgent response regarding progress on the [first] chapter." ### Shelter-in-place drill and safety follow-up - March 15, 2018 shelter-in-place drill: Applicant received automated text and email alerts; two fire wardens came to his office and asked him to go to the shelter-in-place location with them; Applicant refused. - Applicant complained to CSF Officer and Supervisor that no one outside the Division had come to check on him and that his emergency strobe light had not turned on. - CSF Officer followed up with Security Office, OM, SPM, and Senior Security Manager; on March 20, 2018 CSF Officer explained that the strobe light would not be expected to turn on for a drill. - March 26-27, 2018 Applicant wrote to SPM and SSM complaining he had been left behind in his office; he forwarded the email to the Supervisor. - May 3, 2018 Fire and Life Safety Manager visited Applicant’s office and: - clarified shelter-in-place drill protocol; - confirmed Applicant should not require an escort since he was not mobility impaired; - recommended new office setup to maximize visual awareness, including reconfiguration of workstation and clearing files stacked in office; - gave extra instructions for several fire wardens to assist Applicant; - offered to explore additional notification options given Applicant’s concerns. - At Grievance Committee hearing Applicant confirmed he does not require an escort and that "I can exit the building without any problem." - Fire and Life Safety Manager told Applicant on May 3, 2018 to clear stacks of boxes; Applicant did not begin to move boxes until July 2018 and did not finish until August 2018. ### Mediation and Partial Mediation Agreement - Applicant initiated mediation with the Mediation Office on March 14, 2018; joint sessions began on April 30, 2018. - Partial Mediation Agreement finalized for signature on May 25, 2018 comprised twelve points of agreement: 1. Fire Life Safety to assist with installing emergency lighting at Applicant’s desk and additional safety arrangements for shelter-in-place or evacuation. 2. Applicant scheduled regular six-month appointments with his audiologist and with HSD in early June to discuss meeting accommodations such as sitting at the table during senior management meetings or using a self-provided table-placed microphone; Department open to either approach. 3. Applicant will inform Supervisor if unable to participate in a meeting due to technology issues ahead of the meeting so alternative arrangements can be explored. 4. Following his meeting with HSD, Applicant will share appropriate information with colleagues regarding his hearing loss. 5. Supervisor will encourage meeting etiquette (one person speaking at a time; where appropriate suggest saving questions until the end) without unreasonably limiting group discussion dynamics. 6. Applicant agrees to ask colleagues to repeat information or to ask questions during meetings if he is unable to understand or follow the discussion. 7. A summary of meetings and brainstorming ideas will be shared orally or when necessary in writing at the conclusion of meetings. 8. For off-site division social events, Applicant will inform event organizer and pass on accommodation requests to the venue; Department will make reasonable efforts to identify a venue that can accommodate Applicant’s requests; recognizes ADA limitations for public places and that if a venue cannot accommodate requests and a reasonable alternative cannot be found, event may proceed at original venue. 9. For in-house social events, Applicant will inform event organizer and pass on accommodation requests; background music will be turned off for a reasonable period—normally about 30 minutes during an event expected to last for around an hour. 10. Extension granted as a reasonable accommodation for deadlines on two book chapters; Applicant agrees to complete the second book chapter in four weeks, which is approximately June 18th; Applicant will give Supervisor a timeline for the first chapter after receiving Department Director feedback; recognizes book is significantly behind schedule and further delay "is likely to lead to significant disruption of the work program." 11. An editor will be assigned to assist with editing Applicant’s chapters once completed; editor will assist with the broader book project. 12. A follow-up mediation session may be scheduled at the end of June to review updated HSD accommodation recommendations (as per item 2.). - Additional joint mediation sessions occurred on June 28 and July 30, 2018; Mediator sent "notice of case closure" on July 30, 2018 noting the Partial Mediation Agreement and summarizing four "additional points of agreement" recorded on July 31, 2018 after Applicant's minor suggestions. The four additional points stated in full include: - Ombudsman assisting Applicant with necessary safety arrangements and following up with HSD regarding meeting etiquette; Ombudsman to share best practices with Department and HRD. - Applicant to inform SPM of upcoming change in one of the Fire Wardens; new Fire Wardens from outside division should be instructed to inform Applicant when they move so appropriate briefings are provided; Ombudsman may also address with Fire Safety Services. - Applicant agreed to inform Supervisor by mid-August whether he would work with a colleague to complete the second chapter; if agreeable, colleague would help develop questions and restructure the chapter to meet the November 2018 deadline. - Both Applicant and Supervisor agreed on importance of professional and respectful communication; going forward primary communication will be by email, with Supervisor amenable to phone or in-person for urgent issues such as safety concerns; SPM and HR team members available resources. ### FY2018 Annual Performance Review (APR) - Draft APR (June 22, 2018) characterized Applicant’s overall FY2018 performance as "Effective." - "Comparative Strengths" listed as "Technical expertise, planning and organization, delegation." - Draft "Comparative Developmental Areas" read, "[Applicant] could work on strengthening his open communication skills and receiving feedback." - Applicant objected immediately to perceived discriminatory reference to his communication skills and confronted Supervisor in her office, resulting in a contentious encounter with raised voices; Supervisor described Applicant's demeanor as "menacing and rude" and said she was worried for her safety, stating "I strongly believe that some form of disciplinary action is warranted." (Supervisor contemporaneous correspondence and testimony, June 22, 2018.) - Both parties requested a third party for the APR discussion; SPM confirmed Applicant could bring an independent witness on June 27, 2018 and clarified that "open communication skills" referred to timeliness of communication when work was delayed and offered alternative language. - APR discussion took place on July 3, 2018 with Applicant, Supervisor, SPM, and Applicant’s independent witness. - Final revised APR signed by Supervisor and SPM in early August 2018 read: "[Applicant] should ensure that he communicates with his supervisor in a timely way when work is delayed. He would also benefit from efforts to demonstrat[e] openness to feedback on his performance." ### Office relocation - Supervisor expressed concern about personal safety with Applicant in an immediately adjacent office following contentious encounters including June 22, 2018. - Fund’s Ethics Advisor and Chief of Security agreed at end of June 2018 that the Fund should consider relocating Applicant’s office away from the Supervisor "based on the concerns she had raised, if the concerns could not otherwise be addressed," hoping mediation and time would remedy the situation. - On August 15, 2018 the Fund’s Ethics Advisor recommended relocation "as soon as practicable" based on Supervisor’s continued unease and Applicant’s reported behavior; the Chief of Security "concur[red] wholeheartedly." *Source: IMF document j2021-3.* ### 70. The SPM informed Applicant in person on August 28, 2018, with confirmation in writing ### j2021-3 - 70. The SPM informed Applicant in person on August 28, 2018, with confirmation in writing ### Office relocation, safety, and accommodations - The SPM informed Applicant in person on August 28, 2018, with confirmation in writing on August 31, 2018, of the Department’s decision to move Applicant’s office to a new space replicating his existing workstation accommodations, based on the Supervisor’s safety concerns and “following a recommendation by the Ethics Office and Security.” - Office relocation complexities: - Lack of available external window offices suitable for Applicant’s grade level required two moves. - First move: late October 2018. Applicant reported the first new office failed to replicate safety improvements because it reduced his window space to the corridor by more than ten inches, decreasing his visual awareness of the environment. - Applicant requested a second new office without “reduced window exposure to the corridor.” - Applicant chose to remain in the first new office until the second could be modified, declining a “fire/emergency watch” or other special interim safety arrangements. ### Channels of administrative review — Administrative Review process and outcome - Applicant submitted a request for Administrative Review on August 14, 2018, and informed the Supervisor the same day. - On August 20, 2018, Applicant resubmitted the request to the HRD Director after initial routing to the Department’s Director. - Amended Request for Administrative Review filed on September 5, 2018, expanding concerns about FY2018 APR and asserting retaliation in the August 28, 2018 office relocation decision. - Administrative Review conducted by the HRD Deputy Director (at Applicant’s request that HRD Director recuse). - HRD Deputy Director and/or staff spoke with Applicant four times between October 2 and November 13, 2018. - HRD Deputy Director met with Applicant on December 27, 2018, to explain his decision in person. - HRD closed the Administrative Review on January 17, 2019, with a detailed written memorandum finding no violations of Fund law by Management. - The memorandum concluded managers had “generally granted [Applicant’s] requests for accommodations and that their decisions have been based on relevant evidence [and] proper business reasons, and made without improper motive.” ### Grievance Committee proceedings and outcome - Applicant filed and supplemented a Grievance in October 2018 and submitted an amended Grievance to the Fund’s Grievance Committee on February 22, 2019, challenging FY2018 APR and alleging retaliation, discrimination, failure to provide reasonable accommodations, and hostile work environment in violation of the Fund’s Harassment Policy. - Grievance Committee proceedings: - Considered briefs and held weeklong oral proceedings. - Received testimony from fifteen individuals, including Applicant, the Supervisor, the SPM, the Department Director, division staff, and staff involved in implementing Applicant’s accommodations. - Parties stipulated to Applicant having “a hearing impairment that requires reasonable workplace accommodations by the Fund”; no expert medical testimony presented. - On March 19, 2020, the Grievance Committee issued its Report and Recommendation concluding Applicant had not substantiated his challenges and recommended the Grievance be denied. - Fund Management notified Applicant on May 1, 2020, that it had accepted the Grievance Committee’s recommendations in full. - Applicant filed his Application with the Administrative Tribunal on July 31, 2020. ### Applicant’s principal contentions (summarized) - Core allegations: - Failure to engage proactively in an effective interactive process to reasonably accommodate Applicant’s disability for meetings, events, Book Project deadlines, and building safety arrangements. - Disability discrimination: direct discrimination on the Book Project and indirect discrimination in FY2018 APR, office location, and safety arrangements. - Retaliation claims invoking the Fund’s retaliation policy (both the version in effect October 2017–October 2018 and later February 2019 amendments) and comparative laws and policies of the United Nations, World Bank, United States, and District of Columbia. - “Striking pattern of protected activities followed closely in time by adverse actions” demonstrates retaliation for raising ethics complaints. - Breach of the Partial Mediation Agreement: failure to observe proper meeting etiquette, failure to provide meeting summaries, and dropping Applicant’s second chapter from the Book Project. - Pattern of unfair treatment (substantive and procedural) including stereotyping, micro-inequities, violations of legitimate expectations regarding Book Project chapters, and unfairness in Administrative Review and Grievance Committee proceedings. - Relief sought by Applicant (selected items preserved exactly): - Creation by the Fund of a Disability Coordinator position with expertise in disability and reasonable accommodation matters and specified duties including launching awareness initiatives, training, implementing accommodations, and observing and counteracting retaliation. - Implementation of changes to APRs, including Applicant’s FY2018 APR, so that persons with disabilities “only be held accountable for areas that are within their control” and reviews “reflect the performance that could have been achieved without the negative impact of retaliation, discrimination (failure to accommodate) and unfair treatment.” - Removal from Applicant’s personnel record “of any reports . . . related to his disabilities, including any medical files still held outside HSD, to eliminate any reputational harm from his disabilities and his requests for accommodation.” - Compensation for “career and reputational damages,” including damages caused by the non-publication of Applicant’s second chapter for the Book Project. - Revision of the online version of the Fund’s publication resulting from the Book Project to include Applicant’s second chapter, and three months’ net salary as compensation for unfair treatment in respect of that chapter. - Work responsibilities, including managerial responsibilities, corresponding to the job standards for Applicant’s position and three months’ net salary as compensation for career and reputational prejudice. - Compensation for emotional distress in the amount of $100,000, to be transferred to a charity of Applicant’s choice. - Reimbursement of legal fees and costs incurred by Applicant (totaling $356,944.43 as of the date of the Reply and to be supplemented thereafter). ### Respondent’s principal contentions (summarized) - Core defenses: - The case centers on Applicant’s poor work product, resentment, and aggression toward the female Supervisor who led the Book Project. - The Fund provided reasonable accommodations consistent with HSD recommendations, the parties’ mediation agreement, and safety considerations. - No discrimination occurred: Applicant’s second chapter was dropped for quality concerns and unwillingness to work with a co-author; office assignment reflected availability and grade level; “open communication skills” competency in FY2018 APR refers to emotional intelligence and openness to other views, not physical hearing ability. - Retaliation claims governed by the Fund’s retaliation policy in effect October 2017 to October 2018 and Tribunal precedents; later February 2019 policy amendments should not be applied retrospectively. - No causal link between Applicant’s protected activities and any adverse actions; therefore, no retaliation. - No breach of the Partial Mediation Agreement in meeting accommodations or Book Project handling. - No hostile work environment or unfair treatment (substantive or procedural) as alleged. - No relief warranted; certain requested reliefs exceed the Tribunal’s jurisdiction and requested attorneys’ fees (stated as $357,000 in Applicant’s summary) are “wildly excessive” and unjustified. ### Relevant provisions of the Fund’s internal law — Discrimination and reasonable accommodation - Time period covered by claims: October 2, 2017, to October 29, 2018. - Staff Handbook updates: - The Staff Handbook was updated twice during the time period: June 2017 version revised in January 2018 and again in July 2018. - The Tribunal requested all applicable versions for October 2017–October 2018; Respondent provided materials on October 12, 2021, reflecting consistent key provisions throughout the period. - Staff Handbook, Ch. 11.01, Section 5 (Discrimination and Reasonable Accommodation) reproduced in full: - 5.1 Prohibition of Discrimination: employment, classification, promotion and assignment to be made without discriminating because of age, creed, disability, ethnicity, gender, nationality, race or sexual orientation, subject to institutional needs. - 5.2 Staff Members’ Responsibility: staff must comply with policies concerning discrimination (Annex 11.01.3: Discrimination Policy), including supplementary policy statement (2000) on discrimination against persons with HIV/AIDS. - 5.3 Provisions of Reasonable Accommodations: The Fund will provide reasonable accommodation for personnel with a disability, at their request, to enable them to perform the essential functions of their job. An accommodation will not be considered reasonable if it causes undue hardship for the Fund (i.e., significant and disproportionate expense or difficulty). In providing an accommodation, the Fund may decide between one or more reasonable options. - Staff Handbook, Annex 11.01.3 (Discrimination Policy) reproduces definitions, examples, obligations, informal and formal mechanisms, and appendices including: - Policy introduction emphasizing managerial responsibility to create and maintain a supportive working environment. - Definition of discrimination in the Fund’s context, including differences in treatment not based on institutional needs and adverse impact on employment or career opportunities. - Examples of discriminatory manifestations: biased decisions affecting career (salary, assignments, evaluations, promotions), biased work environment, and application of policies in a differentiating manner. - Recognition that discrimination can be a single adverse decision or a pattern of words, behaviors, actions, or inaction, and that cumulative inaction can deprive fair and impartial treatment. - Appendix 1: Guidance on addressing perceived discrimination, including informal mechanisms (manager, SPM, ASPM, Ombudsperson, Senior Advisor on Diversity, Staff Association Committee) and formal mechanisms for recourse. *Source: International Monetary Fund.* ### 1. If the individual’s main objective is to ensure that the discriminatory ### 1. If the individual’s main objective is to ensure that the discriminatory ### Complaint, preliminary inquiry, and disciplinary options - If the individual’s main objective is to ensure that the discriminatory behaviors cease, a complaint may be addressed to the Internal Investigator, who will conduct a preliminary inquiry into the matter. - If, on the basis of the preliminary inquiry, the Director of HRD or the Managing Director believes there are grounds for pursuing an investigation of misconduct, the Internal Investigator will proceed with such an investigation and report the findings to management or the Director of HRD. - If it is concluded that an employee has engaged in misconduct, including discriminatory behavior, disciplinary measures may be imposed. (Paragraphs 1–2) ### Formal dispute resolution and remedies for career damage - If the individual’s main objective is to seek redress for damaging effects on his or her career (e.g., discriminatory decision affecting the individual or failure to take adequate measures in response to a complaint), the employee may seek review through formal channels of dispute resolution in the Fund. - For staff members, formal recourse would normally entail following procedures for bringing a grievance before the Grievance Committee (including prior administrative review), as set out in Chapter 11.03, “Dispute Resolution.” - If, at the end of the grievance process, the staff member remains dissatisfied, he or she may file an application with the IMF Administrative Tribunal (IMFAT). (Paragraph 2) ### Distinguishing discrimination from other inappropriate workplace conduct (Appendix 2) - Inappropriate workplace behavior, as such, is not discrimination; however, behavior that systematically targets certain individuals or groups may be discriminatory. - Harassment, unfair treatment, abuse of power, and favoritism are separate from discrimination but can become discriminatory if they develop into a pattern that systematically addresses certain individuals or groups and impacts performance, development, career opportunities, or career progress. - Managers’ legitimate business decisions, criticism, adverse performance evaluations, or denial of promotion do not of themselves constitute harassment, discrimination, or retaliation if based on standards applicable to and communicated to all relevant employees. - Setting disparate standards or giving biased feedback depending on gender, race, or other irrelevant factors can be a form of discrimination. - The Fund’s working language is English; oral and written English communication skills are relevant performance assessment criteria and negative assessment based on language skills alone should not be perceived as discrimination. - Certain policies and programs (including the Economist Program (EP) and mandatory retirement) require age to be used as one criterion; benefits exclusive to some categories (e.g., expatriates, employees with spouses or domestic partners) are not in themselves grounds for discrimination claims. - The Fund frequently reviews its policies to balance diversity considerations with business objectives. (Appendix 2 text) ### Retaliation provisions (Staff Handbook, Ch. 11.01, Section 11.1 and Annex 11.01.6) - Staff Handbook, Chapter 11.01, Section 11.1: “11.1 Prohibition of Retaliation” — any retaliation against a staff member for raising an ethics complaint in good faith or filing a grievance, or for participating as a witness in either proceeding, shall constitute misconduct, and any adverse decision motivated by retaliation shall be invalid. (Paragraph 87) - Annex 11.01.6 (Retaliation Policy) emphasizes non-tolerance of retaliation for using channels to report suspected misconduct or participating as a witness; retaliation itself is misconduct that could result in disciplinary action and invalidate any adverse decision motivated by retaliation. (Paragraph 88) - Guidance Points include: managers must create an atmosphere free of reprisal; channels include managers, ASPMs, SPMs, Department Heads, HRD, the Ombudsperson, the Ethics Advisor, the Integrity Hotline, and the formal dispute resolution system; staff are expected to cooperate and participate as witnesses when requested; malicious and unsubstantiated allegations are separate acts of misconduct. (Paragraph 88) ### Mediation provisions (Mediation Rules) - Objectives and principles: mediation assists parties in reaching mutually acceptable solutions to workplace disputes as an alternative to formal dispute resolution; three key principles are Voluntariness, Confidentiality, and Informality. (Paragraph 89 and Mediation Rules 1) - Requests for mediation: requests are made in writing to the Mediator and may be made by the staff member, contractual employee, or a Fund representative, jointly or individually. (Mediation Rule 4.01) - Disputes that may be mediated: general guideline is matters that would fall within the jurisdiction of the Grievance Committee for staff or, for contractual employees, the arbitrator (“Grievable Matters”); may include interpersonal disputes, communication issues, and workplace respect concerns; matters not appropriate include regulatory decisions, pension decisions under the Staff Retirement Plan, Medical Benefits Plan coverage, and issues involving violence or a threat of violence. (Mediation Rule 4.02.1) - Mediator’s role: Mediator evaluates appropriateness for mediation, establishes schedule and timelines, and informs parties in writing if matter is not appropriate for mediation. (Mediation Rule 4.02.2) - Confidentiality (4.05): participation and proceedings are strictly confidential; positions taken during mediation may not be disclosed or used in litigation without consent; mediation statements do not serve as notice of alleged wrongdoing and will not trigger disciplinary processes, though the Mediator may refer individuals to appropriate formal notice channels. (Mediation Rule 4.05.1) - Exceptions to confidentiality (4.05.2) include: Fund representative consultation with LEG, HRD, or department HR team on a strict need-to-know basis; explicit party agreement to share information; sharing Memorandum of Understanding for legal advice or enforcement; imminent risk of serious harm as determined by the Mediator. (Mediation Rule 4.05.2) - Mediator shall destroy notes at conclusion of each mediation and may not act as a witness in other Fund dispute resolution proceedings related to the mediated claim. (Mediation Rules 4.05.3–4.05.4) - Conclusion (4.06): mediation may conclude by mediated agreement, withdrawal by one or more parties, or closure by the Mediator; Mediator documents conclusion and notifies parties in writing. (Mediation Rule 4.06) - Memorandum of Understanding (4.07): mutually acceptable resolutions are memorialized in an MoU prepared by the Mediator; management or its delegate must confirm approval on behalf of the Fund before MOU conclusion; MoU is binding once signed by both parties. (Mediation Rule 4.07.1) - Enforcement (4.07.2): alleged breaches of an MoU may be enforced through normal dispute resolution channels (Grievance Committee or arbitration), or the party may first request assistance of the Mediator. (Mediation Rule 4.07.2) - Protection against reprisal (6): any adverse action taken in retaliation for pursuit of or participation in mediation may be grounds for a finding of misconduct and imposition of disciplinary measures per Chapter 11.03, Section 8 of the Staff Handbook. (Mediation Rule 6) ### Harassment policy and unfair treatment provisions (Staff Handbook, Ch. 11.01, Section 4; Annex 11.01.2) - Section 4: Harassment (Staff Handbook, Chapter 11.01, Section 4) — staff are expected to treat one another with courtesy and respect, avoid behavior that creates hostility or intimidation, and act with tolerance, sensitivity, respect, and impartiality toward other persons’ cultures and backgrounds. (Paragraph 91) - Annex 11.01.2: Harassment Policy — defines harassment as behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile or offensive work environment; determination focuses on effect of conduct on others; harassment can be a pattern or a single incident and is especially egregious if it involves abuse of authority or is motivated by discriminatory or retaliatory reasons. (Annex 11.01.2, Section 3.1) - Hostile Work Environment (3.2.4): created by a pattern of words, action, inaction, or otherwise innocuous behavior whose cumulative effect deprives a Fund employee of fair treatment or precludes effective performance of duties. (Annex 11.01.2, Section 3.2.4) - Feedback (3.3): supervisors are expected to provide feedback reasonably and constructively; mere expression of disagreement or professional criticism regarding work performance within supervisor/supervisee relationship shall not be considered harassment. (Annex 11.01.2, Section 3.3) - Examples of harassment (3.5) include denigrating comments, behavior that demeans or humilliates, degrading public tirades, deliberate insults to competence, and threatening or insulting comments including by email. (Annex 11.01.2, Section 3.5) ### Issues for Tribunal consideration and standards of review - The Application presents principal issues: (a) Did the Fund discriminate against Applicant on the basis of disability by failing to provide reasonable workplace accommodations or otherwise? (b) Did the Fund retaliate against Applicant for seeking accommodations, alleging discrimination, and raising ethics complaints? (c) Did the Fund breach its Partial Mediation Agreement with Applicant? (d) Did the Fund subject Applicant to a pattern of unfair treatment? (e) Were the Administrative Review and Grievance Committee proceedings conducted in accordance with fair and reasonable procedures? (Paragraph 93) - Tribunal’s scope of review: the Tribunal reexamines all issues de novo, recognizing the Grievance Committee only makes recommendations. (IMFAT Judgment No. 2007-8, para. 168 cited; Paragraph 94) - Standard for challenging managerial discretion: an applicant’s challenge 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 may apply heightened scrutiny depending on the nature of the underlying decision-making process (e.g., disciplinary decisions). (Paragraph 95 and cited judgments) *Source: International Monetary Fund (Staff Handbook and related policies, excerpt).* ### 96. The Tribunal has long recognized that certain types of discrimination violate not only the ### 96. The Tribunal has long recognized that certain types of discrimination violate not only the ### Tribunal precedent on heightened scrutiny for serious discrimination - The Tribunal has described religious prejudice as “discrimination prohibited by the Fund’s internal law as well as by universally accepted principles of human rights,” and as “a serious charge that may be subject to particular scrutiny by the Tribunal.” (IMFAT Judgment No. 2005-1, March 18, 2005, paras. 81, 50). - The Tribunal held that discrimination against children born outside of marriage would contravene both the Fund’s nondiscrimination standards and universally accepted principles of human rights, requiring “a greater degree of scrutiny over the Fund’s exercise of its discretion.” (IMFAT Judgment No. 2006-6, November 29, 2006, paras. 132-133, 117). - The Tribunal treats discrimination based on disability as comparable in seriousness to religious bias and other forms of grave discrimination, and applies heightened scrutiny to such allegations. ### Fund policy framework on disability accommodations - Staff Handbook, Chapter 11.01, Section 5.1 prohibits discrimination “because of age, creed, disability, ethnicity, gender, nationality, race or sexual orientation.” - Section 5.3 (promulgated February 2017) obliges the Fund to provide reasonable accommodations, at an employee’s request, to enable performance of “the essential functions” of the job; the Fund may choose between “one or more reasonable options” and need not provide accommodations that would cause “undue hardship for the Fund (i.e., significant and disproportionate expense or difficulty).” - HR guidance on “Accommodation of Disabilities” (Intranet, September 2018) addresses submission mechanics and requires consultations before denying an accommodation; it states that “[i]n appropriate cases, the Fund will engage in an interactive process to try and identify a reasonable accommodation.” The Tribunal declined to treat this guidance as applicable to the present case because HR issued it near the end of the case period. ### Applicable precedents and interpretive approach - The Tribunal found Mr. “KK” (paras. 179-202) instructive: even without a formal written protocol then, managers’ proactive steps, periodic coordination, and applicant engagement were relevant to whether accommodations were adequate; absence of detailed time records limited managers’ ability to address workload deviations (Mr. “KK”, paras. 181-195). - World Bank Administrative Tribunal (WBAT) decisions: - BY (No. 2) v. IBRD, WBAT Decision No. 481 (2013): duty to engage in a good-faith interactive process satisfied by “numerous discussions”; reasonableness assessed case-by-case; “reasonable expeditiousness is an implicit requirement” (paras. 54, 60, 63, 66). - FM v. IBRD, WBAT Decision No. 643 (2020): accommodations grounded in medical need not personal preference; reasonableness assessed case-by-case; Bank must “explore various options” and cannot discharge duty by asserting business-need objections without proper process (paras. 114-117). ### Central issues in the Applicant’s claims (October 2, 2017 – October 29, 2018) - Applicant alleges: - (a) the Fund failed to fulfill its responsibility to provide reasonable workplace accommodations for his hearing disability; and - (b) the Fund subjected him to other discriminatory acts on the basis of his disability. - Respondent contends the Fund “worked tirelessly to provide reasonable accommodations for Applicant’s disability, consistent with HSD recommendations, agreements reached by the parties in mediation, and safety considerations.” ### Tribunal’s factual findings on accommodations process and timing - Initial contacts and certifications: - Applicant allegedly first informed the Supervisor of audiology results on October 2, 2017, but did not make a clear request for specific accommodations beyond use of a white-noise machine. - Applicant informed the Supervisor on October 17, 2017 that he would not attend a Department retreat while hearing aids were being repaired; he did not request Fund-provided accommodations to enable attendance. - Formal disability certification sought on November 8, 2017; HSD provided same-day certification. - CSF Officer met Applicant five days after certification, identified five suggested action items, completed several the same day, and initiated action on others; SPM responded immediately to CSF outreach. - November 20, 2017 HSD meeting: - HSD provided same-day documentation listing meeting accommodations, including use of Applicant’s listening pen. - CSF Officer followed up to secure SPM, OM, and Supervisor buy-in for immediate accommodations (primarily allowing listening pen use); some technical options awaited completion of new HQ2 conference rooms. - Applicant’s contemporaneous engagement: - At the time, Applicant characterized discussions as “helpful and workable,” did not propose additions or corrections to HSD/CSF written summaries, and continued to describe the listening pen as an essential meeting accommodation in emails dated June 11, 2018; July 2, 2018; and January 24, 2019. - Tribunal conclusion on reliance: - The Tribunal finds it reasonable for Supervisor, SPM, and Department to proceed based on accommodation plans Applicant had agreed with HSD and the CSF Officer in November 2017; managers were neither privy to confidential medical details nor qualified to assess medical necessity. ### Accommodations and safety measures implemented in 2018, and mediation outcomes - The Fund engaged intensively through 2018, addressing safety concerns and participating in mediation that produced partial and final agreements: - Partial Mediation Agreement dated May 25, 2018 addressed accommodations for Division meetings and events and extensions for the Book Project. - Follow-up mediation beginning June 28, 2018 and a final joint session on July 30, 2018 identified additional agreements and resulted in case closure. - Specific accommodations and actions recorded: - Fire and Life Safety Manager oversaw installation of an extra alarm at Applicant’s desk and instructed several fire wardens to assist Applicant. - Department agreed Applicant could use his listening pen or take a seat at the table at senior management meetings. - Supervisor encouraged meeting etiquette including one person speaking at a time; summaries of brainstorming sessions were noted on flipboards, circulated, and saved to a shared drive. - Division enforced quiet periods without music at events; organizers sought Applicant’s preferred venues where feasible. - Book Project: Applicant received further extensions and was given until mid-August 2018 to indicate whether he would accept working with a co-author to complete the second chapter. ### Applicant conduct that affected accommodation implementation - The record shows Applicant generally declined to: - Take a seat at the table or use his listening pen in senior management meetings as agreed. - Ask colleagues to repeat or clarify points during meetings. - Share appropriate information about his hearing loss with colleagues as envisioned in the Partial Mediation Agreement (Item 4). - Applicant did not confirm by mid-August 2018 whether he would work with a colleague to complete the second chapter as committed in mediation, and later objected when the Supervisor communicated primarily by email as agreed. ### Tribunal procedural determinations and limits on external standards - The Tribunal will not treat the HR September 2018 guidance as applicable to the dispute period because it post-dates substantial parts of the accommodations plan implementation. - The Tribunal declines to adopt United States law standards (e.g., Americans with Disabilities Act) as instructive for interpreting the Fund’s internal law, finding the Fund’s law and Tribunal/WBAT precedents sufficient and noting differences in formulation between external statutes and the Fund’s law. *Source: Tribunal findings and analysis in the matter of Applicant v. International Monetary Fund (accommodations and disability discrimination), covering events and documents dated October 2, 2017 through October 29, 2018.* ### 117. Applicant nevertheless maintains that the Fund f ailed its duty to provide reasonable ### Applicant nevertheless maintains that the Fund failed its duty to provide reasonable accommodations ### Alleged denial of meaningful feedback - Applicant contends he was deprived of “the reasonable accommodation that he needed to receive feedback meaningfully and to participate in discussions of his performance,” citing absence of written summaries for: - Supervisor’s December 6, 2017 feedback on his first book chapter; - mid-year APR discussion of January 18, 2018; - “difficult conversations” regarding his second chapter on March 13 and March 22, 2018. - Tribunal findings: - Applicant did not present evidence showing he required written summaries for those meetings. - The Partial Mediation Agreement of May 25, 2018 (which included a general request for oral or “when necessary” written summaries) post-dated the cited December 2017–March 2018 discussions. - Respondent asserts the Supervisor and the SPM did convey concerns in writing and that Applicant received detailed written feedback on both book chapters, including two sets of tracked edits for the first chapter in December 2017. - Applicant’s testimony shows he was aware of the Supervisor’s immediate discomfort in March and June 2018 and that he often documented in-person exchanges for himself. - Tribunal conclusion: Applicant failed to show he required the specific written feedback he claims was denied; he understood the Supervisor’s guidance but did not accept it. ### Alleged delay or denial of accommodations for social events - Legal/Policy context: - Applicant argues accommodations for social events must be provided “unless [the Fund] can show undue hardship.” - Section 5.03 requires the Fund to “provide reasonable accommodation for personnel with a disability, at their request, to enable them to perform the essential functions of their job.” (Emphasis added) - Issue: whether participation in social events constitutes an “essential function.” - Tribunal approach: - Reasonableness standard (Section 5.3) requires efforts proportionate to the significance of social events for building work effectiveness in a team environment. - Fund may consider that not all staff need to attend every social event; venue constraints and honoree preferences can legitimately affect accommodations. - Factual findings: - Applicant repeatedly opted out of events at the last minute rather than express interest and request accommodations in advance. - The November 20, 2017 accommodation plan developed with HSD did not address modifying social events. - At a December 13, 2017 meeting, there was “not really any discussion of very specific measures” beyond use of Applicant’s listening pen. - Division actions: enforced quiet periods without music at events; sought Applicant’s preferred venues where possible, considering capacity limits and honoree preferences. - Tribunal conclusion: Fund’s efforts to facilitate participation in social events were proportionate and reasonable; Applicant failed to show shortcomings or delays under Section 5.3 or the Partial Mediation Agreement. ### Treatment of Applicant’s delays on the Book Project as a performance issue - Background: - Partial Mediation Agreement of May 25, 2018 memorialized a four-week extension to mid-June 2018 for the second chapter and emphasized: “At this point, the book is significantly behind schedule and [Applicant] recognizes that any further delay beyond the agreed timelines is likely to lead to significant disruption of the work program.” - Factual findings: - Delays on the Book Project were a concern from at least May 2017, months before Applicant raised hearing issues or sought accommodations. - Applicant did not convincingly explain how his hearing disability prevented him from conducting research, producing timely drafts, or addressing written feedback. - Tribunal conclusion: No impropriety in the Fund’s reference to prior delays as a performance issue; the Partial Mediation Agreement did not excuse prior delays. ### Alleged failure to engage proactively in an effective interactive process - Policy context: - Section 5.3 does not require a mandated “interactive process” nor does it require managers to be the more “proactive” party. - HR’s September 2018 guidance (not applicable to this case) states that “In appropriate cases, the Fund will engage in an interactive process to try and identify a reasonable accommodation.” - Tribunal legal view: - Tribunal accepts both sides must engage in an interactive process; the process is iterative and requires active engagement from both staff and management. - Section 5.3 ties the Fund’s duty to provide accommodations to the employee’s request; the employee must pursue and identify when further adjustments are needed. - Factual findings on engagement: - Once Applicant sought certification in November 2017, the record shows detailed discussions and coordination among Applicant, the SPM, the Supervisor, HSD, the CSF Officer, the Fire and Life Safety Manager, and other Department staff. - SPM estimated spending “60-70% of her time for individual cases on Applicant’s case alone.” - CSF Officer described going “above and beyond” compared to support for other hearing-impaired staff. - Fire and Life Safety Manager: “[We’ve gone through a lot more steps for [Applicant] to make him comfortable in his office space, more than any other staff member since I’ve been here” in the past five years. - Chief of Security: level of effort was “considerably more than we have ever given anyone not only on the current list, but in my 16 and a half years at the Fund. . . . More than we’ve given anyone.” - Research Assistant testimony described Supervisor as “quite proactive” in requesting follow-up and assistance to meet Applicant’s needs. - Tribunal conclusion: The Fund fully met the requirements for an appropriate interactive process and engaged in good faith. ### Alleged safety issues including shelter-in-place protocols - Facts regarding March 15, 2018 shelter-in-place drill: - Applicant’s concerns arose from misunderstanding the Fund’s alert system and protocols. - Fund’s four-pronged emergency notification system (fire wardens, audible alarms, automated texts to Fund phones, automated messages to personal email accounts) operated correctly to alert Applicant. - Applicant was offered two escorts from within the Division but refused them; as hearing-impaired but not mobility-impaired, he did not require an escort. - Additional measures taken: - Division’s two fire wardens came to Applicant’s office to offer a personal escort; a third fire warden adjacent to the Division was asked to check on Applicant. - CSF Officer added an interior strobe light to Applicant’s office at his personal request (not required under initial accommodation plan or building code given office size). - Exploring a light on Applicant’s phone was not pursued because it would have required changing the Fund’s entire phone system. - Tribunal conclusion: Applicant’s safety concerns were unfounded on the record; Fund made extra efforts (beyond system redundancies) to accommodate his concerns. Fund retains discretion to choose among reasonable options and is not required to pursue accommodations that would entail undue hardship. ### Tribunal overall conclusions on reasonable accommodations and discrimination - Tribunal conclusion on accommodations: “The Tribunal finds no merit to Applicant’s claims that the Fund failed its duty to provide reasonable accommodations for his disability.” The record demonstrates exhaustive, good-faith engagement by the Supervisor, SPM, CSF Officer, Fire and Life Safety Manager, and others. - Applicant’s additional discrimination allegations: - Claims include: dropping his second chapter from the Book Project; referencing “open communication skills” in his FY2018 APR; reassigning him to an office with ambient noise. - Respondent provides impartial rationales and denies discrimination. - Applicable standards summarized by the Tribunal: - Staff Handbook Chapter 11.01, Section 5.1 prohibits discrimination “against any person because of . . . disability.” Section 5.2 requires compliance with the Fund’s Discrimination Policy at Annex 11.01.3. - Discrimination Policy Section III defines discrimination as differences in treatment based on personal characteristics rather than institutional needs, unrelated to work-related capabilities, qualifications, or experience, and causing adverse impact on employment, job performance, career opportunities, compensation, or other terms and conditions. - Appendix 2 recognizes that managerial business decisions and adverse performance assessments “do not of themselves constitute harassment, discrimination, or retaliation,” and that “Negative assessment or feedback on performance, even if it is frequent and long term, . . . is not discrimination if it is based on standards applicable to and communicated to all relevant employees.” (Bold in original) - Tribunal assumes Fund’s duty prohibits both disparate treatment and disparate impact, citing prior jurisprudence on facially neutral policies that may have differential impact absent a rational nexus to policy purpose. *Source: Tribunal findings and analysis as provided in the supplied text (paragraphs 117–145).* ### 146. As the Tribunal observed in Ms. “GG” (No. 2), “This Tribunal has long recognized as a ### As the Tribunal observed in Ms. “GG” (No. 2), “This Tribunal has long recognized as a ‘well-established principle of international administrative law that the rule of nondiscrimination imposes a substantive limit on the exercise of discretionary authority in both the policy-making and administrative functions of an international organization.’” ### Nondiscrimination principle and burden of proof - The Tribunal applies heightened scrutiny to claims of certain types of discrimination, such as discrimination on the basis of disability, that would violate internal Fund law and universal principles of human rights (Tribunal, supra at Paragraphs 96-97). - The burden of proof is on the applicant to establish that he or she experienced discriminatory working conditions (Tribunal citing Mr. “OO”, IMFAT Judgment No. 2019-2, para. 194; Mr. “KK”, para. 109). - To establish abuse of discretion on the ground of improper motive, the applicant must show a “causal link” between the alleged improper motive and the decision being contested (Mr. “KK”, para. 109; Ms. “GG” (No. 2), para. 330). - The Tribunal has dismissed APR challenges where the applicant “has not met the burden of showing that the contested APR decision was improperly motivated by that same pattern of impermissible treatment” (Ms. “GG” (No. 2), paras. 349, 436). ### Analysis of Applicant’s discrimination claims - The Tribunal considered whether Applicant has shown impermissible discrimination on any of the three grounds alleged. - (i) Treatment of Applicant’s second chapter for the Book Project - Applicant alleged disparate treatment when his second chapter was dropped and contrasted this with a different chapter by a junior colleague that would not be ready for another 5-6 months. - Applicant conceded that he did not claim the Supervisor “attached lower priority to the [second] chapter because she harbored discriminatory animus against him because of his hearing disability.” - Respondent stated the chapter was dropped “because of” the poor quality of Applicant’s work and his uncooperative behavior – not “because of” his disability. - Tribunal findings: - Applicant failed to meet the burden of proof because he declined to suggest any discriminatory animus and thus could not show the requisite “causal link” for a disparate treatment claim. - The Department’s treatment was based on concerns about significant delays and poor writing quality in both chapters from Applicant, the workload needed to “rescue” the second chapter, and Applicant’s unwillingness to work with a co-author to restructure material for publication. - The colleague’s chapter that received more time was substantially broadened in scope midway through the Book Project and was not comparable to Applicant’s chapters, which retained a narrower scope. - (ii) Reference to “open communication skills” in Applicant’s draft FY2018 APR - Applicant alleged indirect discrimination from the June 22, 2018 draft FY2018 APR identifying “open communication skills” as his primary area for development, arguing that uniform application of this standard has a disparate negative impact on staff with hearing loss. - Applicant argued that even if the competency measures cognitive ability, hearing-impaired listeners “have to engage additional cognitive resources ... and as a result suffer from listening fatigue and reduced attention.” - Respondent’s position: - The open communications competency concerns “emotional intelligence, and the ability of a person to reflect on and accept other people’s views.” - The Economist Development Guide checklist for “Creating Open Communications” includes: - Explains clearly and with appropriate detail - Listens attentively for full understanding - Shares information/keeps others up-to-date - Asks clarifying questions - Encourages candid, two-way communication - The revised FY2018 APR (early August 2018) replaced “open communication skills” with: “[Applicant] should ensure that he communicates with his supervisor in a timely way when his work is delayed. He would also benefit from efforts to demonstrat[e] openness to feedback on his performance.” - Supporting evidence: - Supervisor’s Grievance Committee testimony and contemporaneous correspondence indicated Applicant was not forthcoming about progress on the Book Project. - Department Director and colleagues recognized Applicant was resistant to feedback and could be dismissive of competing views. - Prior evaluations: APRs from FY2007 and FY2010 and an MDC report from 2004 identified “Creating Open Communication” as a development area and cited tendencies to “stick too closely to your initial assumptions and positions and not invite or consider others’ views and ideas.” - Applicant conceded awareness of the “open communication skills” competency for many years and had never challenged it before. - Tribunal findings: - The use of the Fund’s “open communications” competency was neither intended to be, nor in effect, discriminatory. - Applicant’s challenges in sharing information and accepting feedback were separate, longstanding issues distinct from any physical hearing impairment. - The critical feedback was supported and appropriately communicated; negative feedback is not necessarily evidence of discrimination, especially where multiple reviewers contributed, no indicia of irrationality or arbitrariness exist, and shortcomings are consistent across a staff career (citing Mr. “KK”, paras. 132, 154; Ms. “GG” (No. 2), para. 131). - (iii) Applicant’s office location and safety arrangements - Office relocation (October 22, 2018): - Applicant complained the new office “was at the edge of the divisional office space and was exposed to ambient noise,” alleging disparate negative impact because it exacerbated social isolation and interfered with hearing aid use. - Respondent: assignment based on availability and Applicant’s grade level; as a relatively senior employee, Applicant was entitled to an office with an external street-side window. Facilities, Fire & Life Safety vetted the office as compliant with Applicant’s disability needs. - An OM email indicated constraints: no free offices within Department footprint; preference to keep Applicant within Division area; search limited to exterior window offices consistent with grade; and the new office “should be further away from the hub of the division ... and therefore in theory more quiet.” - The move aimed to put more distance between Applicant and the Supervisor given Applicant’s reportedly aggressive behavior; Chief of Security advised Supervisor should be “as far from [Applicant] as practicable.” - Applicant was offered an immediate move when he raised complaints on his first morning in the new office: Applicant expressed dissatisfaction on Monday, October 22, 2018 at 8:04 a.m.; by 10:25 a.m. the CSF Officer had offered to move him “now” to an alternative office with wider windows. Applicant accepted but chose not to move immediately and declined any special safety arrangements in the interim. - Tribunal found Fund had legitimate, non-discriminatory reasons to relocate Applicant and that the office choice was not deliberately malicious. - Applicant presented no evidentiary support of damage from isolation or ambient noise; CSF Officer and OM perceived Applicant’s objections as based on status and window size rather than noise or safety. - Life Safety Plan and Emergency Warden Program: - Applicant alleged indirect discrimination because emergency provisions include specific instructions only for mobility-impaired staff and not for hearing-impaired staff; he did not allege specific harm from this lack of equal treatment. - Respondent: the Fund’s multiple alert systems are adequate to protect all staff; Applicant failed to articulate any harm and thus does not meet Article II(1)(a) requirement that a staff member be “adversely affecting” him to challenge an administrative act. - The record shows the March 15, 2018 shelter-in-place drill and the August 15, 2018 fire drill worked as planned; Applicant emailed after the fire drill that “this morning’s evacuation exercise has gone smoothly for me. [The Research Assistant] and [the SSM] have been very helpful.” - Tribunal found no merit to Applicant’s challenge to the Life Safety Plan and Emergency Warden Program; use of special provisions for mobility-impaired staff in evacuation/relocation matters is appropriate and not presumptive evidence of discrimination. - Tribunal conclusion on discrimination: - The Tribunal concluded Applicant failed to show that he suffered any form of discrimination based on his disability (Tribunal findings summarized above). ### Retaliation: standards and scope - Elements of a retaliation claim under Fund law (as applied by the Tribunal): - (i) a protected activity by the party who allegedly suffered retaliation; - (ii) an adverse action against that party; and - (iii) a causal link between the protected activity and the adverse action (Tribunal, para. 166). - Applicant alleged a “striking pattern of protected activities followed closely in time by adverse actions” showing retaliation for raising ethics complaints; Respondent denied retaliation, asserting Applicant cannot show a causal link. - Scope of “protected activities”: - Chapter 11.01, Section 11.1 specifies retaliation against complainants or witnesses in ethics or grievance proceedings is misconduct and any adverse decision motivated by retaliation is invalid. - Annex 11.01.6: Retaliation Policy clarifies the Fund “does not tolerate any form of retaliation against anyone for using any of these channels” and states retaliation against a staff member for raising an ethics complaint or a grievance, or participating as a witness, is misconduct and any adverse decision motivated by retaliation is invalid. - Guidance Points list channels staff are encouraged to use without fear of reprisal: managers, ASPMs, SPMs, Department Heads, HRD, the Ombudsperson, the Ethics Advisor, the Integrity Hotline, and the formal dispute resolution system (Grievance Committee and Administrative Tribunal). - Tribunal interpretation: - Section 11.1 must be read together with Annex 11.01.6; the Retaliation Policy’s wording makes clear the Fund’s prohibition against retaliation protects not only formal complainants and witnesses but “anyone” who uses “any of” the available channels for speaking up, reporting suspected misconduct, raising ethical concerns, and participating in formal and informal dispute resolution. - Thus the Fund broadly protects staff who “speak up” or “raise ethical concerns,” either formally or informally, with managers or through other workplace conflict resolution channels. *Source: IMF Administrative Tribunal content (Paragraphs 146–170).* ### 171. The Tribunal notes Applicant’s contention that the Tribunal’s review should take into ### 171. The Tribunal notes Applicant’s contention that the Tribunal’s review should take into ### Applicability of the Fund’s Retaliation Policy and controlling law - Applicant asks the Tribunal to interpret the earlier Retaliation Policy in pari materia with the Fund’s February 2019 amendment, including: - using the February 2019 policy’s definition of “protected activity” and explanation of “adverse action”; and - applying the February 2019 policy’s proposed evidentiary shift “to show by clear and convincing evidence that the same adverse action would have been taken, for separate and legitimate reasons, even in the absence of the complainant’s protected activity.” - Respondent maintains the controlling law is the Fund’s Retaliation Policy in effect for the time period of this case and Tribunal precedents interpreting that policy, and opposes retrospective application of the February 2019 amendments. - The Tribunal holds that the case must be decided under the version of the Retaliation Policy in place during the relevant time period, not by the subsequent February 2019 amendments. ### Required elements and burdens for a retaliation claim - The Tribunal restates its precedent that to establish abuse of discretion on grounds of improper motive an applicant must show a “causal link” between the alleged improper motive and the contested decision (citing Mr. “KK”, para. 109, and Ms. “GG” (No. 2), para. 330). - Burdens and evidence: - The burden is on Applicant to show a “causal link” between the alleged retaliatory motive and the adverse decisions challenged. - Respondent may counter with evidence of a “reasonable and observable basis” for those decisions. - Where an allegation calls into question impartiality, evidence in the record of a reasonable and observable basis for the decision will be “particularly significant” (Ms. “GG” (No. 2), paras. 325, 329). ### Scope of external sources and other institutional policies - Applicant relied on laws and policies of the United Nations, World Bank, United States, and District of Columbia as “authoritative and helpful.” - The Tribunal declines to consult those external sources for interpreting the Fund’s retaliation provisions, finding the Fund’s own provisions “authoritative and sufficiently clear” for deciding Applicant’s claims. ### Tribunal’s analytical framework for Applicant’s retaliation claims - The Tribunal applies a three-part test to each asserted retaliation claim: - (i) the applicant engaged in a protected activity; - (ii) the applicant suffered an adverse action; and - (iii) there was a causal link between the protected activity and the adverse action. - Applicant’s summary of principal alleged retaliatory incidents: - (i) March 29, 2018 — Supervisor imposed a restriction on Applicant coming to her office without an appointment after he initiated mediation and raised safety concerns. - (ii) June 22, 2018 — Supervisor “demand[ed] that [Applicant] be disciplined” after he complained that APR remarks were discriminatory. - (iii) August 16, 2018 — Supervisor “unilaterally decided to drop” his second chapter from the Book Project after he initiated Administrative Review on August 14, 2018. - Applicant relies heavily on “close temporal proximity” and contends chronology alone is “stunning and dispositive” of causation; Respondent contends many asserted actions are not “adverse actions” and that Applicant fails to establish causation. ### Tribunal findings on the three principal allegations - (a) March 29, 2018 - Findings: - Applicant’s March 27 communications about office safety may not qualify as “raising an ethical concern”; Applicant’s request for mediation is clearly a protected activity and the Supervisor was aware of it before instituting the scheduling requirement (March 30, 2018 email admitted). - The Tribunal is not persuaded that the advance scheduling requirement constitutes an adverse action for purposes of retaliation. - Applicant fails to show a causal link between his mediation request (or safety concerns) and the advance scheduling requirement. - The Supervisor’s testimony that she imposed the scheduling requirement based on Applicant’s hostile and aggressive conduct in her office that evening persuades the Tribunal that that conduct — an “unexpected, uncomfortable, and unwanted encounter” — was the proximate impetus for the scheduling requirement. - Conclusion: March 29, 2018 claim fails for lack of causal link and, in any event, absence of an adverse action. - (b) June 22, 2018 - Findings: - Raising a discrimination concern with management can qualify as a protected activity under the Retaliation Policy even without a formal complaint. - Respondent’s position: Applicant’s behavior in barging into the Supervisor’s office and shouting was not protected and justified the Supervisor’s responses (third-party meeting requirement, complaint to the Director, office relocation). - The Tribunal, considering the record de novo, finds persuasive the Supervisor’s testimony that the Supervisor observed threatening behavior that motivated her actions. - The operative fact was Applicant’s aggressive and inappropriate manner, not the discrimination claim per se. - Conclusion: Actions challenged on June 22, 2018 were a direct result of perceived threatening behavior, not retaliation for protected activity. - (c) August 16, 2018 - Findings: - Applicant’s request for Administrative Review on August 14, 2018 qualifies as protected activity; removing a major deliverable or making substantial changes to a work program could potentially be an adverse action depending on circumstances. - The Department’s decision to drop the second chapter was based on a July 30, 2018 agreement (memorialized by the Mediator) under which Applicant had committed to confirm by mid-August whether he would accept a co-author; without a co-author the chapter would be dropped. - The Supervisor asked Applicant on August 13 to confirm if he would agree to a co-author; Applicant refused to respond, and the chapter was dropped pursuant to the July 30 agreement—two weeks before Applicant sought Administrative Review. - Conclusion: No causal link between Applicant’s August 14 Administrative Review request and the August 16 decision to drop the chapter. ### Tribunal findings on other alleged instances (October 2, 2017 – October 22, 2018) - Specific assertions and Tribunal determinations: - October 2, 2017 (hearing-aid absence and accommodation request): - A request for accommodations alone does not amount to “raising ethical concerns” or other protected activity under the Retaliation Policy; no protected activity established. - October 26 and November 16, 2017 (meetings with Ethics Office and Ombudsperson about accommodations): - Meetings with dispute resolution offices would be protected activity; Applicant provides no evidence the Supervisor was aware of those interactions, so causation is not shown. - Alleged adverse actions occurred in October 2–20, 2017, preceding the meetings. - November 13 and December 13, 2017 (accommodation meetings with CSF Officer, SPM, Supervisor): - Requests for accommodations are not protected activity under the Retaliation Policy and are matters under the Fund’s reasonable accommodations policy. - April 30 – July 30, 2018 (mediation sessions): - Participation in mediation is a protected activity. - Applicant’s asserted adverse action is a claimed failure to honor the Partial Mediation Agreement; this claim is to be considered as alleged breach of mediation agreement rather than retaliation. - June 26–27, 2018 (filing a discrimination and retaliation complaint with OII and related meetings): - Filing a misconduct complaint with OII and participating in an investigation are protected activities. - Applicant provides no evidence the Supervisor knew of the OII complaint at the time; the July 3, 2018 co-author/drop-chapter options were based on concerns that Applicant’s work was delayed and poorly written. - No causal link shown between OII interactions and any adverse action. - July 2, 2018 (email requesting meeting etiquette during APR): - A request for accommodations is not a protected activity under the Retaliation Policy; addressed under reasonable accommodations policy. - July 23 and August 8, 2018 (Ombudsperson meetings): - Engagement with the Ombudsperson is protected activity. - The record shows the Supervisor and SPM were aware of and accepted Applicant’s engagement with the Ombudsperson by at least July 30, 2018 (Mediator’s circulated agreement noting “[Applicant] shared that the Ombudsman is assisting him”). - Alleged retaliatory decisions on August 16 and August 17, 2018 (office relocation and elimination of chapter) are addressed above; Tribunal finds no causal link to Ombudsperson engagement given the July 30 agreement and the earlier July 30 commitments. *The Tribunal.* ### 199. In any event, Applicant cannot show a causal link between the Supervisor’s and SPM’s ### j2021-3 - 199. In any event, Applicant cannot show a causal link between the Supervisor’s and SPM’s awareness of his recourse to the Ombudsperson from late July and the challenged decisions. ### Retaliation claims — Tribunal findings (Paragraphs 199–202) - Paragraph 199: Applicant cannot show a causal link between the Supervisor’s and SPM’s awareness of his recourse to the Ombudsperson from late July and the challenged decisions. The Fund’s decision to relocate Applicant’s office stemmed from earlier consultation following the June 22, 2018 incident. The Ethics Advisor and Chief of Security deferred relocation initially but by August 15 decided to proceed based on the Supervisor’s continued personal safety concerns. There is no evidence that Applicant’s engagement with the Ombudsperson was a factor during relocation discussions. The record does not support Applicant’s contention that the decision to drop his second chapter was improperly motivated or taken “unilaterally.” - Paragraph 200: Applicant’s September 24, 2018 email to the Fire and Life Safety Officer (about new fire wardens and training) does not amount to “raising ethical concerns” or other protected activity under the Retaliation Policy. Applicant fails to show a related “adverse action” in the Supervisor’s assignment of additional work responsibilities on September 26, 2018; the new assignments were intended to fill the gap after Applicant declined a co-author for his second chapter. - Paragraph 201: Applicant’s October 22, 2018 comment that his new office had “downgraded safety arrangements for his disability”—even if construed as protected activity—was not followed by a related “adverse action.” The CSF Officer and others addressed the office concerns on the morning of October 22 (see supra at Paragraph 162). The Supervisor’s October 23 request for a work update (sent to three staff members) was ordinary oversight and not retaliatory. - Paragraph 202: The Tribunal concludes that Applicant’s retaliation claims are without merit. ### Breach of the Partial Mediation Agreement — applicable standards (Paragraphs 203–206) - Paragraph 203: Applicant contends breach for failing to observe proper meeting etiquette, failing to provide meeting summaries, and dropping his second chapter for the Book Project. Respondent denies breach. - Paragraph 204: Mediation Rules emphasize “informality” (Section 1). Section 4.06 requires the Mediator to document conclusion of a mediation and notify parties in writing (Section 4.06.2). Section 4.07 requires a Memorandum of Understanding for mutually acceptable resolutions (Section 4.07.1) and enforceability through the “normal dispute resolution channels” (Section 4.07.2). - Paragraphs 205–206: Tribunal jurisprudence values enforcing negotiated agreements and looks for indications that an agreement was entered into freely and reflected a real balancing and resolution of interests (citing Mr. “V” as precedent). ### Breach claims — Tribunal analysis and conclusions (Paragraphs 207–213) - Meeting etiquette and meeting summaries (Paragraphs 207–209): - Paragraph 207: Applicant asserts multiple breaches: failure to observe good meeting etiquette (as requested July 2, 2018) and failure to provide written summaries (for July 3, 2018 and August 28, 2018). - Paragraph 208: Applicant’s request included “maintenance of eye contact.” The Supervisor’s response accepted “good meeting etiquette” but explained she could not force eye contact. The Partial Mediation Agreement required encouraging “good meeting etiquette, such as one person speaking at a time and, where appropriate, suggest that questions be saved until the end of formal presentations,” while cautioning that guidelines should not “unreasonably limit or change the dynamics of group discussion and brainstorming.” The record supports that the Supervisor reasonably moderated discussions; Applicant fails to substantiate a breach. - Paragraph 209: Brief written summaries were provided for July 3 and August 28, 2018. The Partial Mediation Agreement promised that a summary “will be shared orally or when necessary in writing at the conclusion of meetings.” Applicant’s complaint about not receiving more detailed summaries is not supported by the text of the Agreement; Applicant fails to show inadequacy. - Dropping the second chapter (Paragraphs 210–213): - Paragraph 210: June 18, 2018 deadline related to item 10 of the Partial Mediation Agreement: “[Applicant] agrees to complete the [second] book chapter in four weeks, which is approximately June 18th.” Applicant asserts he worked many hours and understood the chapter would be included upon completion. - Paragraph 211: Respondent agrees publication was “the hope of all concerned” but asserts the Agreement did not promise publication. - Paragraph 212: The Final item in the Agreement left disposition of the second chapter to be determined based on Supervisor’s review of the June 18 draft and a follow-up mediation session. Follow-up mediation led to agreement that Applicant would inform the Supervisor by mid-August whether he would accept a co-author to “restructure the chapter.” When Applicant refused by mid-August, Supervisor and Department Director concluded “the work associated with rescuing the [second] chapter was too high” and the second chapter was dropped. The Department did not breach the mediation agreement by so deciding. - Paragraph 213: Applying a “plain meaning” approach, the Tribunal concludes Applicant failed to substantiate any breach of the Partial Mediation Agreement. ### Pattern of unfair treatment — standards and Tribunal guidance (Paragraphs 214–223) - Paragraph 214: Applicant alleges a pattern of unfair treatment (stereotyping and micro-inequities; violations of legitimate expectations regarding book chapters; application of an outdated Retaliation Policy). - Paragraph 215: Respondent denies hostile work environment or substantively unfair treatment. - Harassment Policy (Paragraphs 216–218): - Paragraph 217: Harassment Policy defines harassment as behavior that unreasonably interferes with work or creates an intimidating, hostile or offensive work environment. Determination considers whether behavior was reasonably perceived as offensive or intimidating and whether it had a demonstrably negative effect. Harassing behavior is especially egregious if it involves an abuse of authority or is motivated by a discriminatory or retaliatory reason. - Paragraph 218: Section 3.2.4 defines Hostile Work Environment as a pattern of words, action, or inaction the cumulative effect of which is to deprive a Fund employee of fair treatment or preclude performance of duties effectively. - Discrimination Policy (Paragraph 219): - Paragraph 219: Discrimination can be manifested by a single decision or through a pattern of words, behaviors, action, or inaction the cumulative effect of which is to deprive an individual of fair and impartial treatment. The failure to provide fair and impartial treatment, even through inaction, can harm a career. - Limits on policies (Paragraph 220): - Paragraph 220: Both policies specify they do not prohibit a supervisor’s negative feedback or adverse decisions about performance or work assignments; “the mere expression of disagreement or professional criticism as part of a feedback process” is not harassment. Appendix 2 of the Discrimination Policy states criticism or adverse decisions do not of themselves constitute harassment, discrimination, or retaliation. - Tribunal jurisprudence (Paragraphs 221–223): - Paragraph 222: Ms. “GG” (No. 2) is instructive: the Tribunal found that repeated mildly offensive words/behaviors forming a pattern can deprive an individual of fair treatment. In that case the Tribunal found a pattern of unfair treatment constituting a hostile work environment (para. 262). - Paragraph 223: Other cases (Mr. “DD”, Ms. “NN”) found applicants failed to substantiate harassment or hostile work environment where evidence showed personality clashes or isolated incidents. ### Applicant’s alleged dimensions of unfair treatment and evidence (Paragraphs 224–226) - Paragraph 224: Applicant identifies three dimensions: (i) “stereotypes and micro-inequities”; (ii) violation of “legitimate expectations” regarding the two book chapters; and (iii) application of an “outdated” Retaliation Policy. - Stereotypes and micro-inequities (Paragraphs 225–226): - Paragraph 225: Applicant disavows claiming discriminatory animus based on his hearing loss but contends he faced pervasive stereotyping by the Supervisor and others via “ill-considered statements” making assumptions about his condition and their ability to understand it. Applicant’s Reply lists examples beginning with instances where the Supervisor “expressed sympathy regarding [Applicant’s] hearing issues” and “encouraged [Applicant] to seek medical attention.” Other statements are attributed to the Supervisor, Department Director, the SPM, the Grievance Committee, and Respondent in pleadings. - Paragraph 226: Applicant alleges a pattern of micro-inequities with examples of being invited to events already organized (January 2018 New Year party, February 2018 farewell lunch, June 2018 World Cup viewing, two farewell parties in July and August 2018). He does not allege venues were chosen to “exclude or annoy him” or “to cause damage to Applicant’s hearing,” and concedes he could have requested accommodations. He contends the Supervisor “did not consult with him in advance on possible accommodation challenges” and that general e-mail invitations could be perceived as indicating his participation was not considered particularly important, leaving him “in the awkward position of either staying away or facing a possible negative reaction to an accommodation request.” *International Monetary Fund — j2021-3 (excerpts as numbered in source paragraphs).* ### 227. Among the remarks challenged by Applicant as stereotyping, the f irst several comments ### j2021-3 - 227. Among the remarks challenged by Applicant as stereotyping, the first several comments ### Findings on alleged stereotyping and discriminatory remarks - The Tribunal finds that the first several comments attributed to the Supervisor were appropriate expressions of support in response to Applicant’s hearing difficulties and did not constitute stereotyping. - The Supervisor’s expressions of empathy were consistent with norms of a collegial and respectful workplace and contradicted Applicant’s implication that the Supervisor was insufficiently solicitous regarding his disability. - The Tribunal finds that several views Applicant attributes to the Supervisor, Department Director, SPM and Department are mischaracterizations of statements; specifically, the record does not support Applicant’s assertions that: - the Supervisor viewed accommodation requests as merely “the expression of a preference” to be addressed at her discretion; - the Supervisor stated that “[d]isability . . . is a choice”; - the Supervisor claimed she “can diagnose the mental health condition of a subordinate”; - the Department Director suggested “[t]he consequences of hearing loss can be overcome by learning to act”; - the Supervisor or SPM suggested that “[Applicant’s] hearing loss does not affect his ability to control the level of his voice”; - the Department viewed staff with invisible disabilities as having inferior “capabilities and attitudes” justifying “low professional expectations.” - Statements made in the Grievance Committee and Tribunal proceedings referenced by Applicant may not be “administrative acts” under Article II of the Tribunal’s Statute and, in any event, fall outside the time period for Applicant’s claims ending October 29, 2018. ### Micro-inequities, social events, and inclusion efforts - Respondent asserts Applicant cannot show any “‘pattern’ of marginalization” from a few social gatherings over the course of a year. - The record supports Respondent’s assertions that: - Applicant did not object to plans for the Department-wide holiday party in January 2018; - the outside venue for the February 2018 farewell lunch was never chosen again after Applicant objected to it; - after Applicant raised concerns about use of the City Lounge where two farewell parties had taken place, departing staff were discouraged from using that venue and generally accepted an alternative; - the Division changed World Cup viewing practices so that all but one game were muted to avoid disturbing Applicant in his office. - The Tribunal disagrees that the Supervisor’s failure to extend personalized advance invitations to Applicant reasonably suggested he was considered unimportant; the record shows ongoing efforts by the Supervisor and Division staff to include him in social events, often at the cost of limiting venues and entertainment and despite Applicant’s reluctance to seek accommodations in advance. - The Tribunal finds Applicant failed to show evidence of micro-inequities, marginalization, or any pattern of words or behaviors reasonably perceived as offensive constituting unfair treatment. ### Alleged violation of legitimate expectations regarding two book chapters - Applicant alleges the Fund violated his “legitimate expectations” about his two chapters for the Book Project; Respondent denies any violation. - First chapter: - Applicant asserts the Fund failed to honor rights of authorship/co-authorship because the published version included data, views and factual material he did not produce and considers inaccurate. - Respondent asserts the Tribunal should not review or decide which dataset should have been used and contends it is unlikely that the Department Director and Applicant’s co-author would have approved the final version if it contained the inaccuracies Applicant claims. - The Tribunal declines to substitute its judgment for Fund management’s assessment of technical and historical accuracy and is not persuaded Applicant had a right as co-author to overrule Fund management’s feedback and revisions. - Second chapter: - Applicant alleges a legitimate expectation that work on the second chapter would lead to publication. - Respondent asserts Applicant had no legitimate expectation of publication when management assessed the chapter as needing substantial restructuring and he refused to work with a co-author to effect that restructuring. - The Tribunal finds no evidence of unfair treatment; the decision whether to publish is a matter for Fund management subject to its criteria of excellence, and staff are not entitled to publication merely because they invested time and effort. - Precedent and practice: - The Tribunal notes Ms. N. Sachdev recognizes that administrative practice may in certain circumstances give rise to legal rights, but that the principle applies only where the organization’s conviction that the practice reflects a legal obligation is shown; Applicant makes no showing that the Fund has an established practice of publishing all works staff have prepared. - The WBAT Decision cited by Applicant addressed attribution, not whether work merited publication. ### Alleged improper application of an outdated Retaliation Policy - Applicant argues it would be unfair to apply an “outdated” Retaliation Policy and that his case should be considered under the revised Retaliation Policy introduced in February 2019. - Respondent argues applying a later-enacted retaliation policy to Applicant’s case would be erroneous and unfair. - The Tribunal states the governing law for Applicant’s retaliation claims is the Retaliation Policy in effect for the time period of the case, i.e., from October 2, 2017, through October 29, 2018, and finds no unfairness in applying the governing policy then in force; applying a later policy retroactively would be unfair to Fund managers and other staff. ### Procedural fairness of the Administrative Review and Grievance Committee proceedings - Standards: - The Tribunal emphasizes the importance of fairness in the administrative review and Grievance Committee processes and may weigh the record generated by the Grievance Committee as an element of the evidence before it. - The Tribunal does not function as an appellate body from the Grievance Committee and does not review evidentiary decisions of the Grievance Committee, but it makes its own findings of fact and law and can rectify lapses in the Grievance Committee’s evidentiary record. - Alleged failure to review a July 3, 2018 decision on the second chapter: - Applicant contends the Administrative Review addressed only the final decision of August 16, 2018 and overlooked a July 3, 2018 decision to make him choose between dropping the chapter or accepting a co-author. - Respondent contends the July 3, 2018 action was a discussion of options consistent with mediation and that the Administrative Review considered and validated the choice of options. - The Tribunal, sitting de novo, finds the record reveals the Administrative Review considered and approved the action (whether characterized as a decision or discussion of options) as within the Supervisor’s discretion; the Administrative Review decision quoted the Supervisor’s August 13, 2018 email offering the choice to “reshape [the second chapter] for publication purposes” or “drop[ping] your book chapter as it currently stands” and observed the Supervisor “was not required to offer you the choice.” - Alleged misreference to three instances of verbal abuse: - Applicant alleges the Administrative Review decision and Grievance Committee incorrectly referred to three, rather than two, instances of verbal abuse; the Administrative Review mis-quoted a June 27, 2018 email stating “on two occasions” as “on three occasions.” - Respondent characterizes the misquote as a typographical error; HRD emailed Applicant on December 11, 2019 acknowledging and apologizing for the “regrettable typo” and confirming it was not relevant to the final decision. - The Grievance Committee reviewed original emails in its proceedings and did not rely on the Administrative Review decision as evidence; it credited the Supervisor’s testimony that there were three instances. - The Tribunal finds no compensable harm absent evidence of deliberate misrepresentation in the Administrative Review process, notes it has evaluated the full record and drawn its own conclusions, and observes that systemic challenges to Grievance Committee evidentiary standards would be a policy matter for Fund management. ### Tribunal conclusions and decision - The Tribunal concludes: - Applicant has not established that the Fund failed to provide reasonable accommodations for his disability; the record reflects the Fund satisfied its duty to engage in an interactive process to identify and implement reasonable accommodations. - Applicant has not established that the Fund engaged in discrimination against him based on his disability. - Applicant has not shown that the Fund engaged in retaliation against him, having failed to show a causal link between any protected activities and adverse decisions. - Applicant has not shown that the Fund breached any obligations under the Partial Mediation Agreement. - Applicant has failed to show any pattern of substantively unfair treatment or procedurally unfair treatment. - Decision: - The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Mr. “SS” is denied. - Signatories listed in the decision: - Catherine M. O’Regan, President - Andrés Rigo Sureda, Judge - Nassib G. Ziadé, Judge - /s/ Catherine M. O’Regan, President - /s/ Celia Goldman, Registrar - Location and date of decision: Washington, D.C. December 27, 2021. --- _Source: https://www.imf.org/-/media/files/imfat/j2021-3.pdf_