## j2022-2 ## Source details **Canonical URL:** [j2022-2](https://www.imf.org/-/media/files/imfat/j2022-2.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2022-2.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2022-2.pdf.json) --- ### Case overview and relief sought - Administrative Tribunal of the International Monetary Fund composed of Judge Nassib G. Ziadé (President), Judge Edith Brown Weiss, and Judge Maria Vicien Milburn decided an Application by Mr. “QQ” against the International Monetary Fund. - Applicant represented himself; Respondent represented by Mr. Mark Racic, Senior Counsel, Administrative Law Unit, IMF Legal Department. - Applicant challenged two Fund decisions: - (i) not to promote him from Grade A11 to Grade A12 in 2016; and - (ii) to credit only partially his earlier contractual employment when setting his starting grade at Grade A11 in 2013. - Relief sought by Applicant included: - rescission of the decision to credit only partially his contractual work experience in setting his starting grade at Grade A11 in 2013 and grant of Grade A12 from 2013 with compensation for associated salary loss; - rescission of the non-promotion decision of 2016 and grant of Grade A13 from 2016 with compensation for associated salary loss; - six years’ salary “as moral and intangible damages to compensate for the Fund’s discriminatory act and all the associated harms”; - legal fees and costs “if any.” ### Factual background (key dates and events) - Applicant first joined the Fund in June 2010 as a contractual employee in the “former Department” with a “shadow grade” of A11 for approximately three years. - August 8, 2013: Applicant accepted a three-year fixed-term staff position as an Economist in another department (the “Department”) at starting grade Grade A11. - February 2016: Applicant became eligible for conversion to open-ended status at the thirty-month mark; Department approved conversion to take effect August 2016 when the fixed-term appointment ended. - February 26, 2016: Applicant proposed an intradepartmental transfer to occur “in mid-April or late-April”; transfer took effect on July 5, 2016. - May 2016 promotion context: - twenty-eight staff were eligible for promotion consideration across the Department; - seventeen staff were proposed for promotion; - ten promotion slots were budgeted by HRD; - Applicant was one of four staff proposed for promotion in his division and was the last candidate removed from the pool; Department promotion decisions took effect in July 2016. - Late July 2016: HRD sent a new appointment letter formalizing change to open-ended status. - August 4, 2016: Applicant queried how his 2013 starting grade was assigned; August 15, 2016: HR Officer explained Applicant had been hired at grade A11 “on the basis of a completed PhD and one and [one-]half years of professional relevant experience” and that his previous contractual experience was counted as 50% because “your position did not reflect the full scope of work and activities of a full-fledged economist.” - Applicant requested formal re-examination of his starting grade on August 23, 2016. - September–October 2016: Mediation occurred but dispute remained unresolved. - Department promoted Applicant to Grade A12 in 2017 and to Grade A13 in 2019 while serving in a different Fund department. ### Procedural history and administrative review - December 8, 2016: Applicant submitted Request for Administrative Review to HRD Director challenging 2016 non-promotion. - April 19, 2017: Applicant filed a Grievance with the Fund’s Grievance Committee alleging “abuse of discretion and IMF’s institutional discrimination regarding staff promotion practice and policy.” - August 4, 2017: Grievance Committee pre-hearing ruled claim contesting 2013 actions not receivable but allowed evidence relating to entire Fund tenure to be introduced for discrimination claims. - September 30, 2017: Fund produced document showing Applicant’s 2013 starting grade calculation confirming 50% credit for 2010–2013 contractual employment. - May 2 and 8, 2018: Grievance Committee evidentiary hearing with five witnesses. - April 23, 2019: Grievance Committee issued Report and Recommendation denying Applicant’s challenge to the 2016 non-promotion on its merits and finding the 2013 hiring claim not timely raised. - May 29, 2019: Fund Management accepted Grievance Committee recommendation. - August 29, 2019: Applicant filed Application with the Administrative Tribunal; transmitted to Respondent on September 3, 2019. - October 2, 2019: Respondent filed Motion to Dismiss in Part seeking summary dismissal of 2013 starting grade challenge. - November 2, 2020: Tribunal dismissed Motion to Dismiss in Part as itself inadmissible; Tribunal granted Applicant anonymity per Rule XXII. - Subsequent pleadings: Respondent’s Answer (December 21, 2020); Respondent’s supplemental documentation (January 7, 2021); Applicant’s Reply (February 25, 2021); Respondent’s Rejoinder (March 29, 2021). - July 27, 2022: Tribunal denied Applicant’s requests for production of documents and for oral proceedings. - Decision: Washington, D.C.; October 25, 2022. ### Admissibility and timeliness: 2013 starting-grade challenge - Tribunal holding: - Applicant’s direct challenge to his 2013 starting grade is inadmissible because it was first raised in 2017 within the Grievance Committee process bypassing the prerequisite administrative review and failed to exhaust administrative remedies under Article V(1) of the Tribunal’s Statute. - Relevant rules and timeline: - Six-month window began on August 8, 2013, when Applicant received and accepted the Fund’s offer letter specifying appointment at Grade A11. - GAO 31, Rev. 4, Section 6.02 requires a request for administrative review “within six months after the challenged decision was made or communicated to the staff member, whichever is later.” - Applicant raised concerns about the starting grade in August 2016 after HRD’s written explanation of partial credit; Applicant first raised 2013 starting grade challenge in a Grievance in April 2017—more than three years and eight months after the 2013 decision and more than eight months after HRD’s August 2016 explanation. - Tribunal’s analysis of exceptions and tolling: - Applicant’s belief that administrative review would be “meaningless” does not excuse failure to exhaust internal remedies. - Mediation participation in September–October 2016 does not toll or revive the expired six-month period. - Tribunal rejected contention that HRD concealed methodology in 2013 such that timely challenge was prevented. - Observational recommendation: - Fund Management “may wish to consider” improved transparency by having HRD inform applicants at hiring if less than full credit is given for prior work experience, preferably in writing. ### Merits analysis of the 2013 starting-grade claim (alternate) - Even assuming admissibility, Tribunal found the Applicant’s challenge would fail on the merits: - No evidence demonstrating discrimination. - Applicant’s APRs support HRD’s use of 50% credit because his contractual role did not reflect “the full scope of work and activities of a full-fledged economist.” - HRD’s determination was reached on a reasoned basis following appropriate consultations. ### 2016 non-promotion to Grade A12 — admissibility, standard of review, and findings - Admissibility: - Applicant’s 2016 non-promotion claim is admissible; it was raised in the December 2016 Request for Administrative Review and the April 2017 Grievance and exhausted administrative remedies. - Standard to overturn managerial discretion: - Decision succeeds only if shown to be “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” - Tribunal findings on the promotion process and facts: - Departmental promotion roundtable compared seventeen proposed candidates and reduced them to ten promotion spots within budget constraints. - Witnesses testified concerns existed about Applicant’s relative strength in certain competencies; Applicant was the last candidate removed from consideration. - Department followed a usual relative assessment in a competitive promotion round operating within budget constraints. - On discrimination: - No evidence of discriminatory motive in the 2016 non-promotion decision; Tribunal found decision resulted from normal comparative assessment. - Applicant’s statistical assertions were found misplaced and his calculation that he had been a Grade A11 Economist for seven years was incorrect; record shows four years at Grade A11 before promotion to Grade A12 in 2017. - On procedural fairness: - Record did not indicate procedural shortcomings; Department “had, and followed, a rigorous process in selecting the staff members most worthy of promotion.” - Roundtable participants “each unequivocally stated that the decision-making process at the roundtable was fair.” ### Promotion Policy and procedural context (selected policy elements) - Promotion Policy for Non-Managerial A-Level Positions (December 2, 2013) highlights: - Section 2 (“Eligibility”) includes staff with “fixed-term appointments on full time status for whom the 30 month conversion decision has been taken” but excludes “contractual employees.” - Section 4 (“Promotion criteria”) lists three minimum criteria: Experience, Performance, and Readiness, with sub-elements including mastery of tasks, at least one APR in current grade, and demonstrated abilities per competency frameworks. - Section 7 (“Annual promotion exercise”) prescribes a multi-step departmental nomination, senior-level substantive discussion, HRD guidance and oversight, and budget constraint considerations. - Section 8 (“Budget constraints”) emphasizes promotion numbers are subject to Fund-wide budget constraints and departmental ceilings. ### Allegations of marginalization, transfer delay, and pattern of discrimination (2013–2016) - Applicant alleged marginalization (desk assignment for three years), delayed transfer (alleged five-month delay from proposed mid-April/late-April to July 5, 2016), and a pattern of discrimination beginning with 2013 partial credit. - Tribunal findings: - Managers designed a work program to play to Applicant’s strengths and address weaknesses to position him for conversion and promotion. - No evidentiary support that transfer timing in 2016 was delayed due to discrimination; delays attributed to “typical workflow considerations,” including mission timing and a Board paper. - Tribunal treated the 2016 non-promotion as the culminating act for a pattern claim and found the cumulative record did not establish a pattern of discriminatory conduct from 2013–2016. - Applicant failed to show a “causal link” between nationality and the non-promotion decision. - Tribunal reaffirmed that statistics alone are insufficient to prove discrimination in an individual case. ### Requests for document production and oral proceedings - Tribunal applied Rule XVII (Production of Documents) and denied Applicant’s production requests because: - Requested statistical data (A11 promotion candidates 2003–2016) and rotation patterns were not probative of discrimination in Applicant’s individual case and would be burdensome and privacy-invasive. - The record already contained Applicant’s APRs and relevant evidence on the nature of his contractual role; additional documents lacked probative value. - On oral proceedings, Tribunal applied Article XII of the Statute and Rule XIII, para. 1, and denied Applicant’s request because the written record, including Grievance Committee transcripts, was sufficient; proposed additional testimony would not add probative value. ### Grievance Committee proceedings: bias, credibility, and Tribunal approach - Applicant alleged Grievance Committee proceedings were tainted by bias, exclusion of material evidence, insensitivity to cultural and linguistic differences, and acceptance of false testimony. - Tribunal approach and findings: - Tribunal does not function as an appellate body from the Grievance Committee but makes its own findings of fact and law and may rectify lapses or discount the Grievance Committee’s record when warranted. - Tribunal found no evidence that the Grievance Committee’s evidentiary record was biased or materially impaired and concluded the record was sufficiently developed to draw findings. - Denial of discovery by the Grievance Committee was characterized as appropriate given lack of underlying factual basis for broad statistical requests. ### Conclusions and disposition - Tribunal conclusions: - (a) Applicant’s challenge to his 2013 starting grade is inadmissible due to untimeliness and failure to exhaust administrative remedies; - (b) Applicant fails to show the Department abused its discretion in deciding not to promote him in 2016; - (c) Applicant fails to show the Fund engaged in a pattern of discrimination against him based on nationality from 2013–2016; - (d) No indication of bias or impropriety in the Grievance Committee proceedings materially impairing the evidentiary record. - Outcome: - The Application of Mr. “QQ” is denied; Applicant shall bear his own costs. - Signatures: - Nassib G. Ziadé, President - Edith Brown Weiss, Judge - Maria Vicien Milburn, Judge - /s/ Nassib G. Ziadé, President - /s/ Celia Goldman, Registrar - Decision location and date: Washington, D.C.; October 25, 2022. *Administrative Tribunal of the International Monetary Fund (Judgment No. 2022-2).* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Case overview - The Administrative Tribunal of the International Monetary Fund composed of Judge Nassib G. Ziadé (President), Judge Edith Brown Weiss, and Judge Maria Vicien Milburn decided an Application by Mr. “QQ” against the International Monetary Fund. - Applicant represented himself; Respondent was represented by Mr. Mark Racic, Senior Counsel in the Administrative Law Unit of the IMF Legal Department. - Applicant challenged two Fund decisions: - (i) not to promote him from Grade A11 to Grade A12 in 2016; and - (ii) to credit only partially his earlier contractual employment when setting his starting grade at Grade A11 in 2013. - Applicant alleged both decisions were motivated by discrimination on the basis of his nationality and raised related allegations about marginalization, lack of written promotion guidance, and unfair treatment in Grievance Committee proceedings. ### Relief sought by Applicant - Rescission of the decision to credit only partially his contractual work experience in setting his starting grade at Grade A11 in 2013. - Grant of Grade A12 from 2013 and compensation for associated salary loss. - Rescission of the non-promotion decision of 2016. - Grant of Grade A13 from 2016 and compensation for associated salary loss. - Six years’ salary “as moral and intangible damages to compensate for the Fund’s discriminatory act and all the associated harms.” - Legal fees and costs “if any” (potential award under Article XIV, Section 4 of the Tribunal’s Statute if the Application is found well-founded in whole or in part). ### Respondent’s position - Respondent denied all allegations and argued no discrimination or unfair treatment occurred. - Respondent argued the 2013 starting grade challenge was untimely and unripe and lacked evidence of improper motive. - Respondent maintained the 2016 non-promotion decision was fair, followed a rigorous process, and lacked improper motive. - Respondent rejected complaints about the Grievance Committee proceedings. ### Procedural posture (high-level) - The Tribunal considered Administrative Review, Grievance Committee proceedings, and subsequent Tribunal proceedings in reaching judgment. --- ### Factual background - Applicant first joined the Fund in June 2010 as a contractual employee in a Fund department (the “former Department”) with a “shadow grade” of A11 and served in that position for approximately three years. - On August 8, 2013, Applicant was offered and accepted a three-year fixed-term staff position as an Economist in another department (the “Department”) at starting grade Grade A11. - Applicant did not question the 2013 starting grade at the time of appointment. - Upon joining the Department, Applicant was assigned to a sector on one of the country desks and served there for approximately three years. - As a fixed-term staff member, Applicant was eligible for conversion to open-ended status at the thirty-month mark, in February 2016; the Department approved conversion to take effect when the fixed-term appointment ended in August 2016. - Applicant proposed an intradepartmental transfer on February 26, 2016 to occur “in mid-April or late-April”; the transfer took effect on July 5, 2016. - In May 2016, managers proposed Applicant for promotion—his first time eligible. Promotion context: - Applicant was one of four staff proposed for promotion in his division. - Across the Department: twenty-eight staff were eligible for promotion consideration; seventeen staff were proposed for promotion; ten promotion slots were budgeted by HRD. - Applicant remained in consideration until nearly the end (the last candidate removed from the pool) but was not chosen for promotion; Department promotion decisions took effect in July 2016. - HRD sent Applicant a new appointment letter in late July 2016 formalizing change to open-ended status. On August 4, 2016 Applicant queried how his 2013 starting grade was assigned given his prior experience. - On August 15, 2016 an HR Officer explained Applicant had been hired at grade A11 “on the basis of a completed PhD and one and [one-]half years of professional relevant experience” and that his previous contractual experience was counted as 50% because “your position did not reflect the full scope of work and activities of a full-fledged economist.” The HR Officer added that “Research conducted during PhD, Research intern/assistant experience, and pre-graduate experience also do not apply toward relevant experience at the professional level for an economist position.” - Applicant requested formal re-examination of his starting grade on August 23, 2016, asserting his three-year contractual experience “involved providing guidance to area economists” and requesting HRD “formally re-examine my case.” - Mediation took place in September and October 2016; an HRD official confirmed participation in mediation on the 2013 starting grade issue; the dispute remained unresolved. - The Department promoted Applicant to Grade A12 in 2017 and to Grade A13 in 2019 while serving in a different Fund department. --- ### Channels of administrative review and Grievance Committee proceedings - December 8, 2016: Applicant submitted a Request for Administrative Review to the HRD Director seeking review of the 2016 non-promotion decision and alleging the decision “neither reflects correctly what I have done at [my Department] for the years of 2013-2016 nor takes into account what I had done at [my former Department] for the years of 2010-2013.” - February 21, 2017: HRD Director responded that the Department’s promotion roundtable determined “other candidates more fully met the criteria for a career-progression promotion,” that the decision “complied with relevant policies and procedures and was reached on reasonable grounds,” and that “neither years of Fund experience nor time in grade were factors in the discussion at the Roundtable.” The HRD Director noted that “experience” as a promotion criterion is a “measure of mastery of the full range of tasks expected in the current grade” rather than a measure of years of service. - April 19, 2017: Applicant filed a Grievance with the Fund’s Grievance Committee alleging “abuse of discretion and IMF’s institutional discrimination regarding staff promotion practice and policy,” and requesting immediate reversal and retrospective promotion. - August 4, 2017: Grievance Committee pre-hearing conference ruled a claim contesting actions taken in 2013 was not receivable, but allowed evidence relating to the Applicant’s entire Fund tenure to be introduced to the extent relevant to discrimination claims. - September 30, 2017: As part of discovery, the Fund produced a document showing Applicant’s 2013 starting grade calculation confirming 50% credit for the 2010-2013 contractual employment. - May 2 and 8, 2018: Grievance Committee evidentiary hearing with five witnesses, including Department managers and an HRD official. - At the hearing, the Grievance Committee reiterated that the 2013 hiring claim was initially not receivable but said it would reconsider after reviewing evidence. - The HRD witness testified that contractual work experience was credited at 50% when setting Applicant’s 2013 grade. - The Committee limited Applicant’s cross-examination on whether HRD acts in 2013 were discriminatory, noting the Committee was “hearing this for the first time today.” - Post-hearing submissions followed; the Grievance Committee produced a Report and Recommendation (detailed procedural history also summarized in IMFAT Judgment No. 2020-1). --- ### Issues raised for Tribunal consideration (as reflected in the record) - Admissibility of Applicant’s challenge to his 2013 starting grade. - Whether the Department abused its discretion in failing to promote Applicant in 2016, including: - Whether the non-promotion was improperly motivated by discrimination on the basis of nationality. - Whether non-promotion resulted from unfair marginalization in the Department. - Whether the Department failed to take the non-promotion decision in accordance with fair and reasonable procedures. - Whether the Fund engaged in a pattern of discrimination against Applicant from 2013-2016, including admissibility of a pattern claim and whether it was substantiated. - Whether Grievance Committee proceedings were tainted by bias or other impropriety materially impairing the evidentiary record. --- ### Procedural and evidentiary context relevant to relief - Applicant sought rescission and retroactive promotions to Grade A12 from 2013 and Grade A13 from 2016, with compensation for associated salary losses and additional damages including six years’ salary for “moral and intangible damages.” - Respondent maintained the challenged decisions were lawful, procedurally regular, and not discriminatory. *Judgment No. 2022-2, Administrative Tribunal of the International Monetary Fund* ### 26. Following the evidentiary hearing, the Grievance Committee invited the parties to f ile, in ### j2022-2 - 26. Following the evidentiary hearing, the Grievance Committee invited the parties to f ile, in ### Procedural history and review-stage decisions - On April 23, 2019, the Grievance Committee issued its Report and Recommendation, recommending that Applicant’s challenge to the 2016 non-promotion decision be denied on its merits. - The Grievance Committee concluded that Applicant had not raised a timely complaint with respect to the decision to set his 2013 starting grade at Grade A11 after considering post-hearing submissions intended to complete the record on that jurisdictional question. - On May 29, 2019, Fund Management notified Applicant that it had accepted the Grievance Committee’s recommendation that his Grievance be denied. - On August 29, 2019, Applicant filed the Application with the Administrative Tribunal; the Application was transmitted to Respondent on September 3, 2019. - On October 2, 2019, Respondent filed a Motion to Dismiss in Part seeking summary dismissal of Applicant’s challenge to the 2013 starting grade decision for failure to exhaust administrative remedies under Article V of the Tribunal’s Statute. - On November 2, 2020, the Tribunal dismissed Respondent’s Motion to Dismiss in Part as itself inadmissible, without prejudice to Respondent’s right to raise inadmissibility in pleadings on the merits; the Tribunal granted Applicant anonymity pursuant to Rule XXII. - Subsequent filings: Respondent’s Answer on the merits (December 21, 2020); Respondent’s supplemental documentation (January 7, 2021); Applicant’s Reply (February 25, 2021); Respondent’s Rejoinder (March 29, 2021). - On July 27, 2022, the Tribunal denied Applicant’s requests for production of documents and for oral proceedings; the Tribunal’s reasoning appears below. ### Grievance Committee’s findings on the 2013 starting grade and partial credit - The Grievance Committee stated that, after receiving post-hearing submissions, it “believes that it now has a complete record upon which to base a decision on this jurisdictional question.” - The Committee concluded Applicant had not raised a timely complaint regarding his 2013 starting grade of Grade A11. - On the merits, the Grievance Committee concluded that Applicant’s argument that HRD improperly gave him only 50% credit for his [former Department] work would fail: - The Committee cited the HRD official’s testimony and elements of Applicant’s APRs in his former Department as supporting the conclusion that his contractual work did not merit full credit in designating his grade level in 2013. - The Committee concluded: “The Committee does not find a basis for rejecting the Fund’s discretionary decision to give Grievant 50% credit for his work with [his former Department]. The APRs also undermine Grievant’s argument that he was completely unaware of the reasons for receiving a grade A11 when hired by [his current Department].” ### Tribunal decisions on evidence production and oral proceedings - The Tribunal applied Rule XVII (Production of Documents), noting it “may . . . order the production of documents or other evidence in the possession of the Fund,” but may reject requests if documents are “irrelevant,” “unduly burdensome” or infringe privacy. - The Tribunal determined the burden and privacy interests outweighed probative value for Applicant’s document requests: - The requested array of statistical data regarding A11 promotion candidates (2003–2016) and Department rotation patterns was found not probative of discrimination in Applicant’s individual case and would be burdensome to compile and would expose APR ratings and career details of potentially identifiable colleagues. - The Tribunal relied on precedent that “statistical information in the absence of other evidence would not be probative of discrimination in [the applicant’s] individual case” and that “statistics alone might establish discrimination” has been rejected. - The Tribunal found remaining requested documents concerning Applicant’s work history and assignments lacked probative value: - The record already contained Applicant’s APRs and other evidence on the nature of his contractual role and how that work was credited. - Applicant contended his APRs were sufficient evidence and described the formal job description as “irrelevant to my education, skillsets and my work assignments” and “meaningless to the actual work I did in [the former Department].” - Additional information about his first desk assignment’s “visibility” would not be probative of nationality-based assignment or retention, given the existing testimonial record. - The Tribunal denied in full Applicant’s requests for production of documents. - On oral proceedings, the Tribunal applied Article XII of the Statute and Rule XIII, para. 1, concluding oral proceedings are warranted only “if . . . the Tribunal deems such proceedings useful,” taking into account “the sufficiency of the written record of the case.” - The Tribunal found the written evidentiary record, including transcripts of Grievance Committee testimony by Applicant and five witnesses, sufficient; additional testimony from Applicant’s proposed team leader in the former Department would not add probative value because Applicant’s CV and APRs were already in the record and Applicant himself asserted the team leader lacked direct knowledge beyond APRs. - Accordingly, the Tribunal denied Applicant’s request for oral proceedings. ### Applicant’s principal contentions (as summarized) - Applicant challenges both the 2013 starting grade and the 2016 non-promotion as demonstrating a pattern of institutional discrimination. - The 2013 starting grade claim is timely and valid because HRD’s use of partial credit for former Department work is the “essential element” of the 2013 claim; HRD “easily . . . hid[] this partial credit issue by providing misleading directions and guidance” in 2013. - The partial credit issue was first revealed to Applicant by email in August 2016 and discussed in confidential mediation in subsequent months; Applicant contends mediation rules prevented explicit administrative review of the partial credit issue during the administrative review stage. - September 30, 2017 (date of “formal” documentary evidence received through Grievance Committee discovery), should be treated as the first effective date to challenge the 2013 decision. - HRD discriminatorily misclassified Applicant’s job responsibilities and afforded only 50% credit for three years of contractual work in 2013; other economists and specialized experts performing the same substance received full credit. - From 2013 to 2016 the Department marginalized Applicant, failed to provide assignments to showcase his skills, delayed transfer from February 2016 to July 2016 (a five-month delay), and caused loss of promotion opportunity from A11 to A12 in 2016. - Statistical evidence allegedly shows discrimination by Department nationality patterns: average time at Grade A11 is “two to three years”; available data indicate Applicant is the only economist in Fund history kept at A11 for seven years; data allegedly show none of Department staff of Applicant’s nationality from 2013 to 2016 were eligible to participate as managers in promotion roundtables or were promoted in those roundtables. - Department promotion roundtable practices lacked written policies and grouped A11–A13 candidates together, which Applicant contends makes the process oblique and prone to abuse. - The Grievance Committee proceedings were tainted by bias, insensitivity, misinterpretations, and false testimony; Committee denied discovery, excluded material evidence, showed “insensitivity to cultural and linguistic differences,” “intentionally misinterpreted” evidence about Applicant’s former work, and credited false testimony. - Applicant seeks relief: - rescission of the decision to credit only partially his contractual work experience in setting his starting grade at Grade A11 in 2013; - grant of a Grade A12 from 2013 and compensation for associated salary loss; - rescission of the non-promotion decision of 2016; - grant of a Grade A13 from 2016 and compensation for associated salary loss; - six years’ salary “as moral and intangible damages to compensate for the Fund’s discriminatory act and all the associated harms”; - legal fees and costs “if any” (potential award under Article XIV, Section 4 if Application is well-founded in whole or in part). ### Respondent’s principal contentions (as summarized) - The 2013 starting grade challenge is untimely: Applicant knew of the A11 offer when the fixed-term staff position was offered in August 2013 and did not challenge it in the following three years. - When Applicant asked HRD about the grade in August 2016, HRD explained he had been given 50% credit for his work in the former Department; Applicant’s December 2016 administrative review request did not raise the partial credit issue or challenge the 2013 starting grade. - Applicant first raised the 2013 starting grade challenge within the formal dispute resolution system in April 2017, during the Grievance Committee complaint—more than three years and eight months after the 2013 decision and more than eight months after HRD’s August 2016 explanation. - Applicant has failed to establish any “exceptional circumstances” justifying setting aside statutory time limits; the timeline shows awareness of essential elements since 2013 and no prevention from learning more detail earlier. - Even if equitable tolling or the discovery rule applied such that a six-month time limit began in August 2016 rather than August 2013, the claim would still be untimely and outside the Tribunal’s jurisdiction; mediation or subsequent receipt of a discovery document reiterating partial credit would not excuse tardiness. *Source: Administrative Tribunal record and Grievance Committee Report and Recommendation as summarized in the Tribunal’s proceedings.* ### 5. In addition to being untimely, Applicant’s challenge to his 2013 starting grade is ### j2022-2 - 5. In addition to being untimely, Applicant’s challenge to his 2013 starting grade is ### Admissibility and timeliness of the 2013 starting-grade challenge - The Tribunal finds the Applicant’s direct challenge to his 2013 starting grade inadmissible because: - The challenge was first raised in 2017 within the Grievance Committee process, bypassing the prerequisite administrative review process. - The Applicant failed to exhaust administrative remedies as required by Article V(1) of the Tribunal’s Statute and Fund rules. - Relevant timeline and procedural rules: - The six-month window for challenging the decision began on August 8, 2013, when the Applicant received and accepted the Fund’s offer letter specifying appointment as fixed-term staff at Grade A11. - Under GAO 31, Rev. 4, Section 6.02, a request for administrative review must be submitted “within six months after the challenged decision was made or communicated to the staff member, whichever is later.” - The Applicant delayed raising concerns about the starting grade until August 2016, when HRD confirmed that his conversion to an open-ended staff appointment was set to take effect and provided a written explanation of the partial credit calculation. - Tribunal’s evaluation of claimed exceptions: - The Applicant’s belief that seeking administrative review would be “meaningless” does not excuse failure to exhaust internal remedies. - The Tribunal rejects the contention that HRD’s methodology concealment prevented timely challenge; the Applicant could have sought clarification earlier. - The Applicant’s participation in mediation in September and October 2016 does not toll or revive the expired six-month period for the 2013 claim; Fund mediation rules allow subsequent formal review if time limits are met, but here the relevant time limits had already expired. - Observational recommendation noted by the Tribunal: - Fund Management “may wish to consider” improved transparency by having HRD inform applicants at hiring if less than full credit is given for prior work experience, preferably in writing, to allow fully informed acceptance and reduce later grievances. ### Merits of the 2013 starting-grade claim (alternative analysis) - Even assuming admissibility, the Tribunal records that the Applicant’s challenge would fail on the merits because: - There is no evidence demonstrating discrimination. - The Applicant’s APRs support HRD’s use of 50% credit for his work in the former Department, given that his role was not that of a full-fledged economist. - HRD’s determination of the starting grade was reached on a reasoned basis following appropriate consultations. ### 2016 non-promotion to Grade A12 — admissibility and standard of review - The Applicant’s 2016 non-promotion claim is admissible; it was raised in the December 2016 Request for Administrative Review and the April 2017 Grievance, and the Applicant exhausted administrative remedies for this claim. - Standard for overturning managerial discretion: - A challenge succeeds only if the decision was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Commentary on the Statute, p. 19.) ### Tribunal findings on the 2016 non-promotion decision - The Tribunal’s summary of the Department’s position and record: - The non-promotion resulted from the Department’s usual relative assessment in a competitive promotion round operating within budget constraints. - The Departmental promotion roundtable compared seventeen proposed candidates and reduced them to ten promotion spots. - Witnesses testified that concerns existed about the Applicant’s relative strength in certain competencies; the Applicant was the last candidate removed from the pool of those promoted. - On discrimination allegations: - The comprehensive record showed no evidence of discriminatory motive in the 2016 non-promotion decision; the Tribunal found the decision to be the result of normal comparative assessment. - The Applicant’s assertions of discrimination based on general statistics were misplaced; the Applicant’s own calculations were mistaken regarding his assertion of having been a Grade A11 Economist for seven years. - On procedural fairness: - The record did not indicate procedural shortcomings in the promotion process. - Evidence shows the Department “had, and followed, a rigorous process in selecting the staff members most worthy of promotion.” - Witnesses involved with the 2016 roundtable “each unequivocally stated that the decision-making process at the roundtable was fair.” ### Allegations concerning marginalization, transfer timing, and Grievance Committee proceedings - Marginalization and career development: - The record shows managers “designed a work program that played to his strengths and addressed his weaknesses . . . in an effort to position him for a successful career, including, first, a conversion to an open-ended appointment, and then promotions in due course.” - The Applicant’s lengthy tenure on his first country desk reflected program-country demands and was, in managers’ view, beneficial; managers also took steps to diversify his portfolio and exposure. - 2016 transfer timing: - No evidentiary support that the Applicant’s transfer to a new country desk in 2016 was delayed due to discrimination; the length of transition was attributed to “typical workflow considerations,” including mission timing and a Board paper. - Grievance Committee proceedings and discovery: - The Grievance Committee denied the Applicant’s discovery requests as “a proverbial fishing expedition without any underlying factual basis” for his discrimination claims. - The Fund submits the Tribunal should give appropriate weight to the Grievance Committee’s credibility determinations because it observed witness testimony under oath, subject to direct and cross-examination, in the Applicant’s presence. ### Overall disposition - The Tribunal concludes: - The Applicant’s direct challenge to his 2013 starting grade is inadmissible due to untimeliness and failure to exhaust administrative remedies. - The record does not establish discriminatory motive or procedural unfairness sufficient to overturn the Department’s 2016 non-promotion decision. - No relief should be granted because the Applicant’s claims are meritless. *International Monetary Fund Administrative Tribunal (judgment excerpt).* ### 65. The Tribunal notes the importance of the Fund’s antidiscrimination provisions and the ### 65. The Tribunal notes the importance of the Fund’s antidiscrimination provisions and the ### Antidiscrimination principle and heightened scrutiny - The Tribunal recognizes 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.” - The Tribunal applies “heightened scrutiny” to claims of discrimination that implicate “universal principles of human rights.” Mr. “SS”, para. 146. - Examples of categories attracting heightened scrutiny include religion, disability, and nationality. See Mr. “SS”, paras. 96-97. ### Burden of proof and evidentiary standards - An applicant bears the burden of proof to establish impermissible discrimination by showing a “causal link” between the alleged discriminatory motive and the contested decision. See Mr. “SS”, para. 147; O’Connor (No. 2), para. 172. - The Tribunal will not accept statistics alone as proof of discrimination against an individual applicant. See Mr. M. D’Aoust (No. 2), para. 137; O’Connor (No. 2), para. 15 & n.11. - An applicant’s lack of career progression, by itself, does not suffice to show discrimination. See Mr. “O”, para. 100; Ms. “W”, para. 98. ### Applicant’s statistical claims and Tribunal finding on 2016 non-promotion - Applicant alleged a disproportionate lack of promotions for Department staff of his nationality and absence of senior staff of his nationality in roundtable discussions; claimed to be “the f irst economist to stay [at Grade] A11 for seven y ears.” - Record shows Applicant served as a Grade A11 Economist for four years, not seven, before promotion to Grade A12 in 2017. - The Tribunal finds Applicant’s statistical arguments and alleged lack of career progression fail to demonstrate that the 2016 non-promotion was due to nationality. Applicant did not offer evidence of a “causal link.” - Credible witness evidence reflected that the Department’s non-promotion decision was based on merit, without regard to Applicant’s nationality. - Conclusion: Applicant fails to show the 2016 non-promotion decision was improperly motivated by discrimination. ### Claim of unfair marginalization on desk assignment (2016 promotion) - Applicant alleged marginalization on one country desk assignment for three years “destroyed all [his] chances to showcase expertise” and “cost [him] the only chance for promotion in 6 years.” - Departmental roundtable testimony: non-promotion based on comparative assessment of technical skills and readiness, not on breadth of assignments. - Roundtable participants acknowledged Applicant’s versatility and variety of contributions (main desk, other Department projects, analytical work). - Promotion process winnowing: twenty-eigh t Department staff eligible for promotion that year, seventeen proposed for promotion, ten promotion slots allotted to the Department; Applicant – in his first year of eligibility for promotion – was the last candidate removed from consideration. - Tribunal finds Applicant has not substantiated that alleged marginalization unfairly “destroyed” his chance for promotion in 2016. ### Procedural fairness: Promotion Policy and roundtable process - Applicable policy: Promotion Policy for Non-Managerial A-Level Positions (December 2, 2013). - Section 1 (“Introduction”) describes scope: “information on the types of promotion at the Fund, promotion criteria, additional promotion considerations, the promotion process and procedures, promotion budget constraints, and promotion salary increases.” - Section 2 (“Eligibility”) identifies categories eligible for non-managerial A-level promotions, including staff with “f ix ed-term appointments on full time status for whom the 30 month conversion decision has been taken,” but “not . . . contractual employees.” This provision makes clear that the 2016 promotion round was the first time Applicant was eligible under the Policy. - Section 4 (“Promotion criteria”) lists three minimum criteria staff must meet to be considered eligible for promotion: - a) Experience. - staff members must have mastered the full range of tasks and responsibilities expected in their current grade and position. - i. staff members should have demonstrated independence in perf orming their work at their current grade level with limited oversight or supervision; - ii. staff members should have experience of some tasks associated with the higher grade level. - b) Performance. - i. at least one APR in their current grade; and - ii. demonstrated a strong performance track record. - c) Readiness. - demonstrated the abilities, skills, and behaviors necessary for successful completion of critical tasks at the next grade in accordance with the competency framework. - The strength of experience, performance, and readiness relative to peers is taken into account; departments may consider departmental-specific requirements and structure. - Section 5 (“Competency frameworks”) states: - Detailed competency frameworks describe critical behaviors expected on entry into each grade. - Models reflect career streams and grade groups; “All models are available on the HR Web.” - A successful candidate “will be expected to demonstrate most of the behaviors described in the competency frameworks for their new grade.” - Section 7 (“Annual promotion exercise”) describes a multi-step exercise to ensure “substantive discussion” by senior Department staff with HRD oversight: - a) Departmental nomination process: - i. Manager-level review: managers consider all eligible staff and propose a shortlist based on experience, sustained performance, and readiness. - ii. Departmental-level review: substantive discussion by senior-level staff on relative strengths to ensure consistency; departments encouraged to review eligible staff not proposed by managers. - iii. Final promotion nominations consistent with departmental budget constraints. - iv. For reviewed candidates, managers provide developmental feedback; competency frameworks inform feedback and development. - Table 2 provides inputs: Experience (Job standards, Job advertisements, Department-specific requirements, Career history/mobility), Performance (Annual Performance Reviews (APR) and Relative Performance Level (RPL)), Readiness (Competency frameworks). - b) Guidance and review by HRD: HRD provides oversight, conducts job audits for across-band promotions, works with [the Office of Budget and Planning] on budget accommodation, and conducts ex-post monitoring and assessment. - Section 8 (“Budget constraints”) emphasizes number of growth promotions is subject to Fund-wide budget constraint; departmental promotion ceilings developed with subceilings for economists, SCS A9-A14, and SCS A1-A8; ceilings established during promotion exercise each year based on budget availability. - Applicant alleged roundtable lacked written rules or guidance and witnesses admitted lack of written rules; however, witnesses who participated testified decision rested on a considered comparative assessment consistent with the Policy’s multi-step process and criteria. - Tribunal finds Applicant has not shown the Department failed to take the non-promotion decision in accordance with fair and reasonable procedures. ### Claim of a pattern of discrimination (2013–2016): admissibility and merits - Applicant alleges a pattern of discrimination beginning with HRD’s use of partial credit to set his 2013 starting grade; continued marginalization within the Department 2013-2016; culminated in 2016 non-promotion. - The Tribunal distinguishes an ongoing pattern claim from a discrete challenge to the 2013 starting grade. The 2013 starting grade challenge was found inadmissible earlier due to untimeliness and failure to exhaust remedies (see supra, Paragraph 59). - Jurisprudence: acts not challengeable as separate administrative acts may be invoked to support a pattern claim if a later act in the pattern has been timely challenged as a culminating act. Ms. “GG” (No. 2), para. 186. - Tribunal finds Applicant’s claim of a pattern of discrimination from 2013-2016 is admissible because the 2016 non-promotion was timely challenged as the culminating act. - On the merits: - The Fund’s Discrimination Policy recognizes discrimination may manifest “through a pattern of words, behaviors, action or inaction . . . , the cumulative ef fect of which is to deprive the individual of fair and impartial treatment.” GAO 33, Annex 3, Section III. - The Tribunal takes a different approach for pattern claims: individual incidents are assessed together to determine whether their cumulative effect deprived the applicant of fair and impartial treatment. Ms. “GG” (No. 2), para. 199. - The Tribunal’s analysis of the record (as summarized above) does not support a finding that Applicant established a pattern of discriminatory conduct by the Fund from 2013-2016. *IMF Administrative Tribunal* ### 85. Consistent with its approach in Ms. “GG” (No. 2), the Tribunal must consider whether ### Consistent with its approach in Ms. “GG” (No. 2), the Tribunal must consider whether ### Allegation of pattern of discrimination - Applicant alleges a pattern of discrimination based on nationality that: - Began with HRD’s use of partial credit to set his 2013 starting grade; - Continued with his marginalization within the Department in the period 2013-2016; and - Culminated in the Department’s non-promotion decision of 2016. ### Evidence and findings on discrimination and professional treatment - The Tribunal finds that Applicant has not presented evidence that his nationality limited his chances for professional growth or recognition. - Record evidence shows managers: - Sought to design a work program to play to Applicant’s strengths and address his weaknesses to position him for conversion to an open-ended appointment and then promotion; - Encouraged one-off assignments and other opportunities to broaden Applicant’s exposure within the Department; - Supported Applicant’s proposed transfer to a new desk in 2016 consistent with business needs. - The Tribunal finds no “causal link” between Applicant’s nationality and his non-promotion in 2016 (see supra at Paragraph 69). - The Tribunal rejects the notion that staff must rely on shared nationality for professional advancement, noting the Discrimination Policy statement: “Every Fund employee shares responsibility for contributing to a working environment that promotes equal treatment and is free from discrimination . . . . It is particularly important that staff in managerial or supervisory roles create and maintain a supportive and encouraging working environment for all employees and take all reasonable actions necessary to prevent and address undesirable or inappropriate behavior.” (GAO 33, Annex 3, Section I). - Considering the totality of evidence, the Tribunal finds Applicant has not identified any events that either singly or together demonstrate unfair treatment based on his nationality and therefore rejects the claim of a pattern of discrimination. - Cited precedents: O’Connor (No. 2), paras. 209-210; Mr. “O”, para. 100. ### Grievance Committee proceedings: bias or impropriety? - Applicant alleges the Grievance Committee proceedings were tainted by: - Bias, denial of document requests, exclusion of material evidence; - “Insensitivity to cultural and linguistic differences”; - Intentional misinterpretations of evidence regarding the nature of Applicant’s work in the former Department; - Acceptance of false testimony from multiple witnesses. - Respondent contends: - Complaints are unfounded and show no evidence of improper motive or intentional misinterpretations; - Denial of discovery requests was appropriate, characterizing them as “a proverbial fishing expedition”; - The Tribunal should give appropriate weight to the Grievance Committee’s credibility determinations. - Tribunal’s approach to Grievance Committee record: - Reaffirms that the integrity and fairness of administrative review and Grievance Committee processes directly affect the Administrative Tribunal (Ms. “GG” (No. 2), paras. 429-430; para. 423 quoting Mr. M. D’Aoust, para. 17). - Confirms it does not function as an appellate body from the Grievance Committee and does not review evidentiary decisions of the Grievance Committee (Ms. “GG” (No. 2), paras. 423-424). - Affirms it makes its own findings of fact and law and may rectify lapses or discount the Grievance Committee’s record when warranted (Ms. “GG” (No. 2), paras. 425, 427; Mr. “KK”, para. 205). - Tribunal’s finding on bias: - Does not find evidence that the Grievance Committee’s evidentiary record is biased or otherwise impaired; - Has made its own determinations regarding Applicant’s requests for additional documents and testimony (see supra, Paragraphs 34-44); - Concludes the record is sufficiently developed for the Tribunal to draw its own findings of fact and conclusions of law. ### Conclusions of the Tribunal - The Tribunal emphasizes seriousness of discrimination charges and that disagreement over managerial decisions does not by itself establish discrimination. - The Tribunal’s conclusions in this case (Paragraph 94): - (a) Applicant’s challenge to his 2013 starting grade is inadmissible due to his untimely raising of the claim and his failure to exhaust administrative remedies; - (b) Applicant fails to show that the Department abused its discretion in deciding not to promote him in 2016; - (c) Applicant fails to show that the Fund engaged in a pattern of discrimination against him based on his nationality; - (d) There is no indication of bias or other impropriety in the Grievance Committee proceedings so as materially to impair the evidentiary record generated by the Grievance Committee. - Outcome: - Accordingly, the Application, including all of Applicant’s requests for relief, is denied, and Applicant shall bear his own costs. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Application of Mr. “QQ” is denied. - Signatures and officials: - Nassib G. Ziadé, President - Edith Brown Weiss, Judge - Maria Vicien Milburn, Judge - /s/ Nassib G. Ziadé, President - /s/ Celia Goldman, Registrar - Location and date: Washington, D.C.; October 25, 2022 --- _Source: https://www.imf.org/-/media/files/imfat/j2022-2.pdf_