## JUDGMENT No. 2025-1 — INTRODUCTION ## Source details **Canonical URL:** [JUDGMENT No. 2025-1 — INTRODUCTION](https://www.imf.org/-/media/files/imfat/j2025-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2025-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2025-1.pdf.json) --- ### Case composition and dispositive motion - The Administrative Tribunal of the International Monetary Fund adjudicated a Motion for Summary Dismissal in the second Application brought by “SS” (Applicant) against the International Monetary Fund (Respondent). - Tribunal composition: - Judge Nassib G. Ziadé, President; - Judge Deborah Thomas-Felix; and - Judge Maria Vicien Milburn. - Representation: - Applicant: Mr. Adam Augustine Carter, Esq., The Employment Law Group, PC. - Respondent: Mr. Brian Patterson, Assistant General Counsel; Ms. Cynthia Colaiacovo, Senior Consulting Counsel, Administrative Law Unit, IMF Legal Department. - Procedural effect: The Motion for Summary Dismissal suspended the period for answering the Application until the Tribunal decides the Motion; at this stage the Tribunal considered only admissibility. ### Prior adjudication and scope of the second Application - First Application: - Covered: October 2, 2017 to October 29, 2018 (the “First Period”). - Tribunal denied the first application in a Judgment dated December 27, 2021. - Present Application: - Concerns: October 30, 2018 until the end of November 2019 (the “Second Period”). - Parties’ stipulation in the first application: Applicant has a hearing impairment constituting a disability under the Fund’s disability discrimination and reasonable accommodation policy. ### Core allegations in the second Application - Applicant alleges that, during the Second Period, the Fund: - subjected him to disability discrimination, including: - indirect discrimination due to de-activation of the Office Telephone Alert (“OTA”) text feature and a failed OTA test; - delay in moving Applicant to a “Suitable Office”; - failure to implement reasonable accommodations; and - failure to ensure accessibility; - failed to provide reasonable accommodations for work-related meetings, social events, and shelter-in-place events; - subjected him to retaliation and to harassment and a hostile work environment (nine examples, including a planned but rescinded transfer to another Division); - abused discretion regarding publication of a book chapter Applicant drafted; and - subjected him to unfair treatment in the “internal redress process”. - Remedies sought: - “significant monetary damages” for career and reputational harm, including reputational loss from finalization and publication of the book chapter over his objection; and - attorney’s fees and costs. ### Administrative review and Grievance Committee proceedings - Administrative review requests: - June 27, 2019 (to Acting Head of Department Y); - July 10, 2019 (to Director of HRD); - supplementary request on January 6, 2020. - Grievance filings: - Grievance filed August 26, 2019; “updated second grievance” filed May 21, 2020. - HRD Deputy Director response: September 23, 2020 — concluded no evidence supported Applicant’s claims. - Fund’s Motion to Dismiss the Grievance: December 15, 2020 — argued res judicata, mootness, and failure to exhaust remedies. - Grievance Committee April 19, 2021 ruling on Motion to Dismiss: - barred consideration of events on or before October 29, 2018, while allowing facts arising after that date to be presented; - prohibited introduction of documentary or testimonial evidence relating to the period prior to October 29, 2018, but allowed notice of the earlier record for background. - Hearings: held over five days in October and November 2021 with sixteen witnesses. ### Grievance Committee findings, remedy, and management action - Grievance Committee report dated June 3, 2022: - rejected Applicant’s claims of discrimination, failure to provide reasonable accommodations, and retaliation; and - found certain actions constituted harassment or creation of a hostile work environment: - planned transfer to another Division carried out in a way that fostered hostility within the Department; - Applicant’s supervisor’s disparaging comments about Applicant to colleagues; - marginalization and exclusion of Applicant from communications; and - supervisor’s unwillingness to engage directly and giving Applicant the “proverbial ‘cold shoulder.’” - Remedies recommended: - four months’ salary for intangible harm (Grievance Committee recommendation dated March 30, 2023); - reimbursement of $40,000 for legal fees and expenses. - Management action: On May 3, 2023, Fund senior management accepted the Grievance Committee’s recommendations. ### Procedural history before the Tribunal - Applicant filed present Application: August 2, 2023; revised and transmitted to Respondent on November 2, 2023. - Joint Motion permitted Supplemental Application on attorney’s fees and costs and stayed Respondent’s deadline to answer. - Supplemental Application filed December 4, 2023 (transmitted December 5, 2023). - Respondent filed Motion for Summary Dismissal: January 4, 2024 (transmitted to Applicant January 8, 2024). - Applicant filed Objection: February 7, 2024; supplemented annexes February 14 and 15, 2024. - Respondent filed comments on Applicant’s request for costs: February 26, 2024. ### Respondent’s principal admissibility arguments - Respondent argues: - Applicant’s disability discrimination, retaliation, and harassment and hostile work environment claims should be dismissed as res judicata. - The planned but rescinded transfer to another Division is moot. - The remainder of the case should be dismissed for failure to exhaust administrative remedies. - Applicant’s document request regarding the 2019 Mobility Support Program exercise is a veiled attempt to challenge a 2019 assignment without following statutory time limits and required channels. ### Tribunal’s summary-dismissal standard - Tribunal’s Rule XII, para. 1 permits summary dismissal where the application is “clearly inadmissible.” - Rule XII sets a high bar: dismissals are for applications that are “clearly irreceivable or devoid of merit,” intended to protect applicants’ right to be heard and to avoid premature cutting off of proceedings. - Summary dismissal “provides a mechanism to shorten the proceedings where inadmissibility is clear at the outset,” protecting the Tribunal and Respondent from expenditure on matters with no reasonable ground to advance beyond the threshold. --- ### ADMISSIBILITY ANALYSIS AND FINDINGS ### Tribunal approach to res judicata and initial conclusion - Factors considered under res judicata: - claims raised in the earlier case; - purpose of the earlier litigation; - legal arguments put forward and considered in the earlier case; - the Tribunal’s decision and rationale in the earlier judgment. - Tribunal findings: - Applicant now raises the same general categories of claims as in the first application and the purpose of both litigations is essentially the same (to determine merit and potential compensation). - Applicant presents, for the most part, different factual claims for a different time period and in some instances identifies relevant documents and rules against which the new factual claims should be assessed. - Conclusion: the present Application for the most part does not raise claims that have already been adjudicated. ### Discrimination claims — admissibility determinations - Earlier (first application) claims included failures to engage in interactive process, discrimination related to Book Project, indirect discrimination in FY2018 APR, office location, and safety arrangements. - New factual claims in the Second Period found admissible (not barred by res judicata): - indirect discrimination from de-activation of the OTA text feature and a failed OTA test; - indirect discrimination arising from delay in moving Applicant to a suitable office; - meeting-accommodation failures for Fund missions occurring in the Second Period; - recording-device allegations if they pertain to the Second Period; - office change in early November 2018 leading to ambient noise exposure preventing hearing-aid use until early afternoon and presenting a health risk (move during the Second Period); - failure to follow HR guidance on “Accommodation of Disabilities” (guidance published September 2018 and not considered in “SS”); - relevance of a March 7, 2019 Mediation Implementation Agreement (not considered in “SS” because reached after the First Period); - alleged lack of accessibility of the City View Lounge for social events during the Second Period (notice since August 16, 2018; unaddressed during the Second Period). - Evidence scope: e-mails dated October 29, 2018 (October 30, 2018 e-mail about that meeting) fall in the First Period and will not be considered for Second Period claims; other e-mails dated within the Second Period may be considered for new factual claims subject to relevance and probative value. ### Retaliation claims — admissibility determinations - Tribunal finds Applicant’s retaliation claims in the present case are based on new events arising in the Second Period and therefore were not addressed in “SS.” - Retaliation Policy revision: - Fund’s Retaliation Policy was revised in February 2019 (after the First Period and before events Applicant claims were retaliatory in the Second Period). - IMF Legal Department article summarized key changes to the Retaliation Policy: - (i) introducing a clear and broad definition of retaliation and the protected activities to which it relates; - (ii) establishing a framework that includes an expedited review process by the IMF Office of Internal Investigations (OII) to address complaints of retaliation; - (iii) establishing higher standards of proof when responding to retaliation allegations; and - (iv) retaining a mandatory duty for managers to resolve or report any ethical concerns. - Tribunal concludes the revised Retaliation Policy is applicable to Applicant’s Second Period claims. - Second Period retaliatory events identified by Applicant (treated as distinct factual allegations): - “Reassignment to [another Division] in March 2019”; - “Negative Comments from [Applicant’s Supervisor] March 22-28, 2019”; - “[Supervisor’s] Revisions to . . . Book Chapter After June 3, 2019”; - “[Applicant’s Supervisor’s] Withdrawal of [Applicant’s] General Delegated Supervisory Authority Over the Book Project in June 2019”; - “Negative Comments from [Departmental] Supervisors on July 8-9, 2019”; - “[Supervisor’s] Fully Sidelining of [Applicant] as Co-author of the [book] Chapter after July 8, 2019”. ### Harassment and hostile work environment — admissibility determinations - In “SS”, Tribunal identified three dimensions to unfair treatment claims: (i) “stereotypes and micro-inequities”; (ii) violation of “legitimate expectations” re two book chapters; and (iii) application of an “outdated” Retaliation Policy. - Applicant’s nine incidents in the second Application (found to have occurred in 2019 and not barred by res judicata): 1) [Applicant’s Supervisor] Marginalized [Applicant] with Respect to the Finalization of the Book Chapters; 2) [Applicant’s Supervisor] Marginalized [Applicant] with Respect to the Finalization of the Debt Dataset and the Working Paper Describing the Debt Dataset; 3) Marginalization and Undue Influence with Respect to the [book] Chapter – Inappropriate Changes to the June 3, 2019, Version of the [book] Chapter; 4) Marginalization with Respect to the Work in the [Department] Division Overall; 5) Additional Negative Comments from [Applicant’s Supervisor] on March 22, 2019; 6) [Applicant’s Supervisor’s] Disparaging July 9, 2019, e-mail to Professor [A]; 7) [Applicant’s Supervisor’s] Cold Shoulder Treatment of [Applicant]; 8) Lack of Proper Office Arrangements and Failures to Accommodate; and 9) Reassignment to [another Division in March 2019]. - Conclusion: the nine incidents are linked to the Second Period and are not barred by res judicata. ### Mootness and the rescinded 2019 reassignment decision - Facts: - Applicant requested OII review of a March 2019 proposed reassignment to a different Division, asserting retaliation. - OII standard (Staff Handbook, February 2019 Version, Annex 11.01.6, Section 4.3): OII determines whether “there is clear and convincing evidence that the same adverse action would have been taken, for separate and legitimate reasons, even in the absence of the complaint’s protected activity.” If there is “no clear and convincing evidence to support such a finding, OII will conclude that retaliation has occurred.” - OII informed Applicant later in 2019 that it “did not find clear and convincing evidence” that the Department would have proposed reassigning him “absent [his] protected activities.” - Based on OII’s conclusion, the proposed reassignment was found by OII to be retaliatory and Applicant’s managers rescinded the proposed reassignment. - Fund’s position: Management’s acceptance of OII’s recommendation “is not an admission that retaliation occurred.” - Tribunal finding: Although the reassignment decision was rescinded, it may have present legal effect and Applicant seeks monetary damages for “damaging effects”; in the particular circumstances of the present case, the claim concerning the planned, but rescinded, reassignment is not moot. ### Abuse of discretion claim regarding publication of a book chapter - Applicant alleges supervisor abused discretion by making “major revisions” to a draft book chapter and that Department management abused its discretion in deciding to proceed with publication with the revised chapter. - Administrative exhaustion record: - Applicant did not claim abuse of discretion regarding the book chapter in his July 10, 2019 administrative review request or his January 6, 2020 update, though the issue was alluded to in an October 15, 2019 meeting. - HRD (September 23, 2020) understood Applicant’s claims concerning the book chapter to fall under retaliation and characterized edits as “a reasonable exercise of managerial discretion.” - Applicant’s May 21, 2020 submission to the Grievance Committee alleged improper discretionary authority “in the context of the book project”; Grievance Committee treated book chapter complaints in the context of retaliation. - Tribunal ruling: Applicant’s abuse of discretion claim regarding the book chapter was not explicitly addressed on administrative review and was not considered by the Grievance Committee; therefore it is inadmissible. Tribunal will consider book chapter complaints under retaliation and harassment/hostile work environment rubrics. ### Claims of unfair treatment in the internal redress process and scope of Tribunal review - Applicant’s identified instances of purported unfair treatment in the internal redress process: - (a) “an unwarranted and prejudicial delay” in communication of Fund management’s decision on OII’s review; - (b) Applicant never received “the text of the October 7, 2019, . . . decision on the outcome of the A15 mobility pool”; - (c) Grievance Committee’s procedural rules “are ad hoc, unpublished, unknown to staff members and their counsel, and decided at the discretion of the GC’s chairperson”; - (d) Fund “has an unreasonably long grievance procedure”; - (e) two sets of Grievance Committee transcripts were not shared with Applicant; and - (f) Grievance Committee’s “ruling on medical records from [Applicant’s psychiatrist] was inconsistent with U.S. and D.C. law.” - Tribunal observations and rulings: - Applicant challenged two administrative acts (alleged delayed communication of OII decision and alleged failure to provide text of October 7, 2019 ICM decision); Applicant did not seek to exhaust administrative remedies on those two administrative-act claims; those two claims are inadmissible. - With respect to the four Grievance Committee elements, Tribunal will review such claims only to the extent Applicant asserts the Grievance Committee process materially impaired the record in his case. - Tribunal is competent to review the integrity of Grievance Committee process but does not function as an appellate body to the Grievance Committee. ### Mobility Support Program documents and timeliness / admissibility - Applicant requested: - “the text of the October 7, 2019, ICM decision (A15 Mobility Pool) and any documents relating to the motivations or communications of the participating SPMs [Senior Personnel Managers] in the A15 Mobility Pool regarding any of the candidates or the positions offered.” - Fund’s position: Applicant’s request is a veiled attempt to challenge the mobility pool exercise without administrative review and a full hearing before the Grievance Committee. - Applicant’s position: Seeks evidence of a “failure of fair process” as reputational-damage evidence, not to directly challenge mobility pool decisions as administrative acts adversely affecting him. - Grievance Committee rulings: - Applicant twice proposed contesting the reassignment decision (pre-hearing conference June 14, 2021; letter June 30, 2021); Grievance Committee dismissed those proposals on jurisdictional grounds. - Grievance Committee found Applicant was not relieved of duty to seek administrative review and that even if heard without administrative review, his claim was untimely (May 22, 2020 filing long after six-month deadline). - Tribunal ruling: Applicant was not relieved of duty to seek administrative review of the reassignment decision; even if claim could be heard absent administrative review, it was untimely. Applicant’s challenge to the process pertaining to the 2019 mobility exercise is inadmissible. ### Tribunal procedural rulings and scope of further pleadings - Respondent’s Motion: Except for the Tribunal’s rulings at paragraphs 72, 75 and 81, the Motion is denied because it has not met the “high bar” of Rule XII for dismissal before a full exchange of pleadings on the merits. - Procedural next steps: - Filing of the Motion suspended pleadings on the merits; the Fund’s Answer, Applicant’s Reply, and the Fund’s Rejoinder shall now follow according to the Tribunal’s Rules of Procedure and taking into account the Tribunal’s conclusions. - Applicant’s pleadings on the merits must be narrowly tailored and relate only to claims allegedly arising during the Second Period and deemed admissible by the Tribunal. - Tribunal will not consider any factual or legal claims raised by Applicant in connection with the First Period, nor any facts from the First Period except to the extent such facts are strictly used as context for new factual claims arising in the Second Period. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Motion for Summary Dismissal of the Application in “SS” No. 2 is denied, and the pleadings on the merits shall resume taking into consideration the conclusions reached by the Tribunal in this Judgment. - Signatures and formalities: - Nassib G. Ziadé, President - Deborah Thomas-Felix, Judge - Maria Vicien Milburn, Judge - /s/ Nassib G. Ziadé, President - /s/ Paul Jean Le Cannu, Registrar - Washington, D.C. January 21, 2025 *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2025-1.* ### INTRODUCTION ........................................................................................................... ### JUDGMENT No. 2025-1 — INTRODUCTION ### Case composition and dispositive motion - The Administrative Tribunal of the International Monetary Fund adjudicated a Motion for Summary Dismissal in the second Application brought by “SS” (Applicant) against the International Monetary Fund (Respondent). - The Tribunal was composed, pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Nassib G. Ziadé, President, and Judges Deborah Thomas-Felix and Maria Vicien Milburn. - Applicant was represented by Mr. Adam Augustine Carter, Esq., of The Employment Law Group, PC. - Respondent was represented by Mr. Brian Patterson, Assistant General Counsel, and Ms. Cynthia Colaiacovo, Senior Consulting Counsel, Administrative Law Unit, IMF Legal Department. - The Motion for Summary Dismissal suspends the period for answering the Application until the Tribunal decides the Motion; at this stage the Tribunal considered only admissibility. ### Prior adjudication and the scope of the second Application - Applicant’s first application covered October 2, 2017 to October 29, 2018 (the “First Period”); the Tribunal denied that first application in a Judgment dated December 27, 2021. - The present Application concerns events from October 30, 2018 until the end of November 2019 (the “Second Period”). - The parties stipulated in the first application that Applicant has a hearing impairment constituting a disability under the Fund’s disability discrimination and reasonable accommodation policy. ### Core allegations in the second Application - Applicant alleges that, during the Second Period, the Fund: - subjected him to disability discrimination (including indirect discrimination due to de-activation of the Office Telephone Alert (“OTA”) text feature and a failed OTA test, delay in moving Applicant to a “Suitable Office”, failure to implement reasonable accommodations, and failure to ensure accessibility); - failed to provide reasonable accommodations for work-related meetings, social events, and shelter-in-place events; - subjected him to retaliation and to harassment and a hostile work environment (nine examples, including a planned but rescinded transfer to another Division); - abused discretion regarding publication of a book chapter Applicant drafted; and - subjected him to unfair treatment in the “internal redress process”. - Applicant seeks: - “significant monetary damages” for career and reputational harm, including reputational loss from finalization and publication of the book chapter over his objection; and - attorney’s fees and costs. ### Administrative review and Grievance Committee proceedings - Administrative review requests were filed by Applicant on June 27, 2019 (to Acting Head of Department Y), July 10, 2019 (to Director of HRD), and a supplementary request on January 6, 2020. - Applicant filed a Grievance with the Grievance Committee on August 26, 2019; an “updated second grievance” was filed on May 21, 2020. - HRD Deputy Director responded on September 23, 2020, concluding no evidence supported Applicant’s claims. - The Fund filed a Motion to Dismiss the Grievance on December 15, 2020, arguing res judicata, mootness, and failure to exhaust remedies. - The Grievance Committee’s April 19, 2021 ruling on the Fund’s Motion to Dismiss: - barred consideration of events on or before October 29, 2018, while allowing facts arising after that date to be presented; - prohibited introduction of documentary or testimonial evidence relating to the period prior to October 29, 2018, but allowed notice of the earlier record for background. - The Grievance Committee held hearings over five days in October and November 2021 with sixteen witnesses. ### Grievance Committee findings, remedy, and management action - In a report dated June 3, 2022, the Grievance Committee: - rejected Applicant’s claims of discrimination, failure to provide reasonable accommodations, and retaliation; and - found that certain actions constituted harassment or creation of a hostile work environment, specifically: - the planned transfer to another Division carried out in a way that fostered hostility within the Department; - Applicant’s supervisor’s disparaging comments about Applicant to colleagues; - marginalization and exclusion of Applicant from communications; and - the supervisor’s unwillingness to engage directly and giving Applicant the “proverbial ‘cold shoulder.’” - Following hearings on remedy, the Grievance Committee recommended on March 30, 2023 that Applicant be awarded four months’ salary for intangible harm. - The Grievance Committee recommended reimbursement of $40,000 for legal fees and expenses. - On May 3, 2023, Fund senior management accepted the Grievance Committee’s recommendations. ### Procedural history before the Tribunal - Applicant filed the present Application on August 2, 2023; it was revised and transmitted to Respondent on November 2, 2023. - A Joint Motion permitted Applicant to file a Supplemental Application on attorney’s fees and costs and stayed Respondent’s deadline to answer. - Applicant filed a Supplemental Application on December 4, 2023 (transmitted December 5, 2023). - Respondent was granted an extension and filed its Motion for Summary Dismissal on January 4, 2024; the Motion was transmitted to Applicant on January 8, 2024. - Applicant filed an Objection on February 7, 2024, and supplemented annexes on February 14 and 15, 2024. - Respondent filed comments on Applicant’s request for costs on February 26, 2024. ### Respondent’s principal admissibility arguments - Respondent’s Motion argues principally that Applicant’s disability discrimination, retaliation, and harassment and hostile work environment claims should be dismissed as res judicata. - Respondent contends one example (the planned but rescinded transfer to another Division) is moot. - Respondent states the remainder of the case should be dismissed for failure to exhaust administrative remedies, and interprets Applicant’s document request as a veiled attempt to challenge a 2019 assignment to another Department. ### Issues framed by the Grievance Committee’s hearing The parties agreed the following statement of issues for the Grievance Committee hearing: - Did the Fund violate Section 5.1, Chapter 11.01, GAO 11, to ensure Applicant was not subject to discrimination on account of his disability? - Did the Fund violate Section 5.3, Chapter 11.01, GAO 11, to provide reasonable accommodation for work-related meetings, social events, and shelter-in-place events? - Did the Fund violate Chapter 11.01 and Chapter 11.03, GAO 11, to ensure Applicant was not subject to retaliation or reprisal? - Did the Fund violate Annex 11.01.2, GAO 11, to ensure Applicant was not subject to harassment or a hostile work environment? *Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2025-1 (Introduction).* ### 1. Applicant’s claims of disability discrimination, retaliation, and harassment and ### j2025-1 - 1. Applicant’s claims of disability discrimination, retaliation, and harassment and ### Respondent’s principal requests and summary-dismissal standard - Respondent asks the Tribunal to summarily dismiss the Applicant’s claims of disability discrimination, retaliation, harassment, and hostile work environment as res judicata. - Respondent argues the proposed transfer claim is moot because the proposed transfer decision was rescinded and therefore did not adversely affect Applicant. - Respondent contends the “remainder of the case” should be dismissed for failure to exhaust administrative remedies. - Respondent contends Applicant’s request for documents regarding the 2019 Mobility Support Program exercise is an attempt to litigate matters not challenged within statutory time limits and required channels and should be dismissed. - The Tribunal’s Rule XII, para. 1, permits summary dismissal where the application is “clearly inadmissible.” - The Tribunal has emphasized that Rule XII sets a high bar: dismissals are for applications that are “clearly irreceivable or devoid of merit,” intended to protect applicants’ right to be heard and to avoid premature cutting off of proceedings. - Summary dismissal “provides a mechanism to shorten the proceedings where inadmissibility is clear at the outset,” protecting the Tribunal and Respondent from expenditure on matters with no reasonable ground to advance beyond the threshold. ### Applicant’s principal contentions on admissibility - Applicant contends discrimination claims are not barred by res judicata because: - (a) there is no overlap between the First and Second Periods for some discrimination claims; - (b) for overlapping periods, individual incidents marking a pattern of indirect discrimination are different or documented differently; - (c) a Mediation Implementation Agreement and HR guidance on Accommodation of Disabilities were not considered by the Tribunal in the first case; - (d) Applicant raises a new lack of accessibility claim for the period covered by the present Application. - Applicant contends retaliation claims are not barred by res judicata because: - (a) adverse actions alleged in the present Application are different and cover a different time period than those in the first application; - (b) Applicant’s first case was decided under a version of the Retaliation Policy that has changed. - Applicant contends harassment and hostile work environment claims are not barred because he lists nine documented incidents that do not overlap with the first case. - Applicant contends the proposed-but-rescinded transfer is not moot because it is “both an incident under a hostile work environment pattern and an adverse action under a pattern of retaliation.” - Applicant contends remaining claims are admissible. - Applicant contends his document request about the 2019 Mobility Support Program exercise is not an untimely challenge to the mobility pool outcome but is evidence of a failure of fair process and part of evidence for reputational damage from hostile work environment and retaliation. ### Tribunal’s approach to res judicata and initial conclusion - The Tribunal applies the doctrine of res judicata considering: - (a) claims raised by the applicant in the earlier case; - (b) purpose of the earlier litigation; - (c) legal arguments put forward and considered in the earlier case; - (d) the Tribunal’s decision and rationale in the earlier judgment. - The Tribunal finds Applicant now raises the same general categories of claims as in the first application; the purpose of both litigations is essentially the same (to determine merit and potential compensation). - However, Applicant now presents, for the most part, different factual claims for a different time period and in some instances identifies relevant documents and rules against which the new factual claims should be assessed. - Consequently, the Tribunal concludes that the present Application for the most part does not raise claims that have already been adjudicated. ### Discrimination claims — detailed findings on admissibility - The Tribunal examines whether the Applicant is raising discrimination claims already adjudicated: - In the first application Applicant argued: - The Fund failed to engage proactively in an effective interactive process to reasonably accommodate Applicant’s disability with respect to meetings, events, Book Project deadlines, and building safety arrangements. - The Fund discriminated based on disability including direct discrimination through disparate treatment on the Book Project; and indirect discrimination through disparate impacts in relation to his FY2018 APR, office location, and safety arrangements. - In the present Application Applicant raises new factual claims during the Second Period: - (a) indirect discrimination on account of the de-activation of the OTA text feature and a failed OTA test; - (b) indirect discrimination on account of the delay in moving Applicant to a suitable office. - The Tribunal finds these are new factual claims for a period not addressed in the first Application and therefore not barred by res judicata. - For claims with overlap between First and Second Periods, the Tribunal addresses specific issues: - Meeting accommodations (including Fund missions and use of recording devices): - Applicant asserts he did not participate in Fund missions during the First Period but did during the Second Period; failure to provide proper arrangements for a mission in the Second Period is a new factual assertion and may be considered on the merits. - Applicant distinguishes use of a recording device from a listening pen addressed in “SS”; if the recording-device allegations pertain to the Second Period, they are not barred by res judicata. - Applicant’s “daily journal” annexes include e-mails dated October–December 2018 and January–July 2019. An e-mail dated October 30, 2018 concerns an October 29, 2018 meeting (during the First Period) and will not be considered for Second Period claims; other e-mails falling in the Second Period may be considered solely to support new factual claims for the Second Period, subject to relevance and probative-value determinations. - Safety arrangements (OTA deactivation): - Applicant asserts the Fund de-activated the OTA text feature and was unaware of that deactivation during the first application. - The deactivation of the OTA feature is a new factual claim arising in the Second Period and is not barred by res judicata. - Exposure to office ambient noise: - Applicant asserts an office change in early November 2018 (Second Period) at his request due to ambient noise; new office continued to expose him to ambient noise preventing him from wearing hearing aids until early afternoon and presented a health risk. - The Tribunal finds this office-noise claim relates to a move during the Second Period and is distinct from earlier litigation, therefore not barred by res judicata. - HR guidance on “Accommodation of Disabilities”: - The HR guidance was published on the Fund’s Intranet in September 2018 and was not considered in “SS” because it was issued near the end of the First Period. - The guidance provides procedures for staff with disabilities to request accommodations and guidance to managers. - Applicant asserts his supervisor did not follow the HR guidance regarding new factual claims in the Second Period; this provides an additional basis that the new factual discrimination claims are not barred by res judicata. - Mediation Implementation Agreement: - A March 7, 2019 Mediation Implementation Agreement was not considered in “SS” because it was reached after the First Period. - The Agreement memorializes actions agreed on May 16, 2018 and dated May 25, 2018, and sets out an action plan and roles/responsibilities regarding safety and security, departmental meetings and social events, and the FY2018 APR. - The possible relevance of the Mediation Implementation Agreement to the new Second Period discrimination claims provides a further basis to conclude those claims are not barred by res judicata. - Accessibility of City View Lounge: - Applicant asserts the City View Lounge (top floor of HQ2) lacks accessibility for persons with hearing loss attending social events due to vending machines and ice-making equipment in an adjacent room creating a structural access barrier for persons using digital hearing aids. - Applicant asserts the Fund has been on notice since August 16, 2018 of this issue and did nothing during the Second Period to address it. - To the extent Applicant alleges failure to accommodate disability at social events arising during the Second Period, those facts were not litigated previously and are not barred by res judicata. ### Retaliation claims — detailed findings on admissibility - Applicant contends retaliation claims are not barred because the alleged retaliatory events in the Second Period differ from those in the First Period and because the Retaliation Policy has changed. - In the first case Applicant cited events on March 29, 2018; June 22, 2018; and August 16, 2018. - In the current Application Applicant identifies different events as retaliatory, including: - “Reassignment to [another Division] in March 2019” - “Negative Comments from [Applicant’s Supervisor] March 22-28, 2019” - “[Supervisor’s] Revisions to . . . Book Chapter After June 3, 2019” - “[Applicant’s Supervisor’s] Withdrawal of [Applicant’s] General Delegated Supervisory Authority Over the Book Project in June 2019” - “Negative Comments from [Departmental] Supervisors on July 8-9, 2019” - “[Supervisor’s] Fully Sidelining of [Applicant] as Co-author of the [book] Chapter after July 8, 2019” - The Tribunal treats these as distinct factual allegations arising in the Second Period and assesses admissibility accordingly. ### Other admissibility issues and Tribunal procedural observations - The Tribunal frames the central procedural question for summary dismissal: Is the application “clearly inadmissible” under Rule XII of the Tribunal’s Rules of Procedure? - The Tribunal will consider each of Respondent’s Rule XII arguments in turn (Respondent’s Motion to summarily dismiss is addressed across the Tribunal’s analysis). - On Applicant’s document-production request regarding the mobility pool exercise, Applicant asserts the request supports a fair-process claim and reputational-damage evidence rather than challenging the mobility-pool outcome as an administrative act adverse to him. *Judgment of the Tribunal (consideration of admissibility under Rule XII and res judicata).* ### 54. The Tribunal finds that Applicant’s claims of retaliation in this case are based on new ### j2025-1 - 54. The Tribunal finds that Applicant’s claims of retaliation in this case are based on new ### Retaliation claims, applicability of res judicata, and Retaliation Policy revision - The Tribunal finds that Applicant’s claims of retaliation in the present case are based on new events that did not arise during the First Period and which were therefore not addressed by the Tribunal in “SS”. - The Fund’s Retaliation Policy was revised in February 2019—i.e., after the First Period and before any of the events that Applicant claims were retaliatory in the Second Period. - An IMF Legal Department article summarized the changes to the Retaliation Policy as follows: - As a result of the IMF’s review of its retaliation policy, the framework through which retaliation concerns are addressed was strengthened in four key aspects, notably by (i) introducing a clear and broad definition of retaliation and the protected activities to which it relates; (ii) establishing a framework that includes an expedited review process by the IMF Office of Internal Investigations (OII) to address complaints of retaliation; (iii) establishing higher standards of proof when responding to retaliation allegations and (iv) retaining a mandatory duty for managers to resolve or report any ethical concerns. - The article also stated that because the IMF Administrative Tribunal (IMFAT) had not yet had occasion to examine retaliation cases under the new retaliation policy, there was no guidance yet on IMFAT’s application of the Fund’s retaliation policy and of the standards of proof. - In “SS”, the Tribunal found that the revised version of the Retaliation Policy was not applicable because it came into effect during the Second Period. - The Tribunal concludes that Applicant’s retaliation claims arising in the Second Period are not barred by res judicata and that the Fund’s Retaliation Policy revised during the Second Period is applicable to the claims. ### Harassment and hostile work environment / unfair treatment claims - In “SS”, the Tribunal identified three “dimensions” to Applicant’s substantive unfair treatment claims: (i) “stereotypes and micro-inequities”; (ii) violation of his “legitimate expectations” with respect to his two book chapters; and (iii) application of an “outdated” Retaliation Policy. - In the second Application, Applicant refers to nine incidents which he asserts “mark a pattern of unfair treatment with an adverse impact on his successful job performance, career opportunities, or other terms and conditions of employment.” The incidents are: 1) [Applicant’s Supervisor] Marginalized [Applicant] with Respect to the Finalization of the Book Chapters; 2) [Applicant’s Supervisor] Marginalized [Applicant] with Respect to the Finalization of the Debt Dataset and the Working Paper Describing the Debt Dataset; 3) Marginalization and Undue Influence with Respect to the [book] Chapter – Inappropriate Changes to the June 3, 2019, Version of the [book] Chapter; 4) Marginalization with Respect to the Work in the [Department] Division Overall; 5) Additional Negative Comments from [Applicant’s Supervisor] on March 22, 2019; 6) [Applicant’s Supervisor’s] Disparaging July 9, 2019, e-mail to Professor [A]; 7) [Applicant’s Supervisor’s] Cold Shoulder Treatment of [Applicant]; 8) Lack of Proper Office Arrangements and Failures to Accommodate; and 9) Reassignment to [another Division in March 2019]. - The Tribunal found that the above alleged incidents dated in 2019 clearly arose after the First Period and therefore are not barred by res judicata. The undated incidents were also found to have occurred during the Second Period and are not barred by res judicata. - Conclusion on harassment and hostile work environment claims: the nine incidents are all linked to the Second Period and are not barred by res judicata. ### Discrimination claims - Conclusion on discrimination claims: The new factual discrimination claims that specifically arise during the Second Period are not barred by res judicata. ### Mootness and the rescinded 2019 reassignment decision - Applicant included the planned reassignment to another Division in 2019 among examples of retaliation and harassment and hostile work environment. - In March 2019, Applicant submitted a request to OII for an independent review of a proposal by his Department to reassign him to a different Division, asserting that the proposed move was in retaliation for his requests for reasonable accommodations and for expressing concerns about discrimination and earlier retaliatory actions. The proposed reassignment was put on hold pending OII’s review. - The Staff Handbook (February 2019 Version), Annex 11.01.6 (“Retaliation Policy”), Section 4.3 (“Access to Information and Standard of Review for OII Independent Review”) provides that OII will determine whether “there is clear and convincing evidence that the same adverse action would have been taken, for separate and legitimate reasons, even in the absence of the complaint’s protected activity.” If there is “no clear and convincing evidence to support such a finding, OII will conclude that retaliation has occurred.” - Applying that standard, OII informed Applicant later in 2019 that it “did not find clear and convincing evidence” that his Department would have proposed reassigning him to the other Division “absent [his] protected activities.” Based on OII’s conclusion, the proposed reassignment was found by OII to be retaliatory and Applicant’s managers rescinded the proposed reassignment. - The Fund argues that Management’s acceptance of OII’s recommendation “is not an admission that retaliation occurred.” - The Tribunal finds that although the reassignment decision was rescinded, it may have some present legal effect on Applicant’s position and that Applicant seeks monetary damages to address the claimed “damaging effects” of the alleged incidents. Accordingly, in the particular circumstances of the present case, Applicant’s claim concerning the planned, but rescinded, reassignment to a different Division is not moot. ### Abuse of discretion claim regarding publication of a book chapter - Applicant alleges his supervisor abused her discretion by making “major revisions” to a draft book chapter he drafted and that Department management abused its discretion in deciding to proceed with publication of the book with the revised chapter. - Administrative exhaustion and record review indicate Applicant did not claim abuse of discretion regarding the book chapter in his July 10, 2019 request for administrative review or in his January 6, 2020 update, though the issue was apparently alluded to in an October 15, 2019 meeting. - HRD, in its September 23, 2020 decision on administrative review, understood Applicant’s claims concerning the book chapter to fall under retaliation, while stating that edits made to the book chapter were “a reasonable exercise of managerial discretion.” - Applicant’s May 21, 2020 submission to the Grievance Committee alleged that his supervisor improperly used discretionary authority “in the context of the book project.” The Grievance Committee concluded that complaints regarding the book chapter would only be addressed in the context of Applicant’s retaliation claims, on the basis that Applicant had invoked retaliation before HRD and the Grievance Committee as a cause of action for his book chapter claims and that a retaliatory decision would be violative of Fund law. - The Tribunal finds Applicant’s abuse of discretion claim regarding the book chapter was not explicitly addressed on administrative review and was not considered by the Grievance Committee; therefore it is not properly before the Tribunal and is inadmissible. - The Tribunal will, however, consider Applicant’s complaints regarding the book chapter under the rubrics of retaliation and harassment and hostile work environment. ### Claims of unfair treatment in the internal redress process and scope of Tribunal review - Applicant identified instances of purported unfair treatment in the internal redress process: - (a) “an unwarranted and prejudicial delay” in communication of Fund management’s decision on OII’s review; - (b) Applicant never received “the text of the October 7, 2019, . . . decision on the outcome of the A15 mobility pool”; - (c) the Grievance Committee’s procedural rules “are ad hoc, unpublished, unknown to staff members and their counsel, and decided at the discretion of the GC’s [Grievance Committee’s] chairperson”; - (d) the Fund “has an unreasonably long grievance procedure”; - (e) two sets of Grievance Committee transcripts were not shared with Applicant; and - (f) the Grievance Committee’s “ruling on medical records from [Applicant’s psychiatrist] was inconsistent with U.S. and D.C. law.” - The Fund did not expressly address these claims but argued the “remainder of this case” should be dismissed for failure to exhaust administrative remedies. - The Tribunal observes Applicant challenged two administrative acts (the alleged delayed communication of OII-related decision and the alleged failure to provide the text of the October 7, 2019 ICM decision) and four elements of the Grievance Committee’s review. The record shows Applicant did not seek to exhaust administrative remedies on the two administrative-act claims; those two claims are inadmissible. - With respect to the four Grievance Committee elements, the Tribunal will review such claims only to the extent Applicant asserts that the Grievance Committee process materially impaired the record in his case. The Tribunal is competent to review the integrity of the Grievance Committee process but does not function as an appellate body to the Grievance Committee. ### Mobility Support Program documents and timeliness / admissibility - Applicant requests “the text of the October 7, 2019, ICM decision (A15 Mobility Pool) and any documents relating to the motivations or communications of the participating SPMs [Senior Personnel Managers] in the A15 Mobility Pool regarding any of the candidates or the positions offered.” - The Fund argues Applicant’s request is a veiled attempt to impose liability on the Fund for a perceived flaw in the mobility pool exercise without subjecting allegations to administrative review and a full hearing before the Grievance Committee. - Applicant contends he seeks to raise “a failure of fair process” as evidence of reputational damage from hostile work environment and retaliation, not to directly challenge mobility pool decisions as administrative acts adversely affecting him. - The Tribunal finds that in the particular circumstances of this case a claim of “a failure of fair process” involving an administrative act would involve a challenge to the administrative act itself. The decision in question was Applicant’s 2019 reassignment to Department X under the Mobility Support Program. - Before the Grievance Committee, Applicant twice proposed that the reassignment decision be among issues he could contest: (a) at a pre-hearing conference on June 14, 2021; and (b) in a letter dated June 30, 2021. The Grievance Committee dismissed those proposals on jurisdictional grounds. - The Grievance Committee rejected Applicant’s argument that he was relieved of his obligation to seek administrative review of the reassignment decision and found that even if his claim could be heard without seeking administrative review, his Grievance was untimely. - Applicant was informed on October 8, 2019 of the Mobility Support Program reassignment to Department X. He filed an initial Grievance on August 26, 2019, prior to the communication date, and an updated Grievance on May 22, 2020. The Grievance Committee noted that even if the May 22, 2020 filing could be construed as challenging the reassignment, it “was filed long after the six-month deadline for contesting the [reassignment] decision.” - The Tribunal agrees with the Grievance Committee’s conclusions that Applicant was not relieved of his duty to seek administrative review of the reassignment decision and that even if his claim could be heard absent seeking administrative review, it was untimely. - Ruling: Applicant’s challenge to the process pertaining to the 2019 mobility exercise is inadmissible. ### Tribunal procedural rulings and scope of further pleadings - The Tribunal concludes that, except for the Tribunal’s rulings at paragraphs 72, 75 and 81, Respondent’s Motion is denied because it has not met the “high bar” set by Rule XII of the Tribunal’s Rules of Procedure for dismissal of an application before a full exchange of pleadings on the merits. - Because filing of the Motion suspended pleadings on the merits, the Fund’s Answer, Applicant’s Reply, and the Fund’s Rejoinder shall now follow according to the schedule prescribed by the Tribunal’s Rules of Procedure and taking into account the Tribunal’s conclusions in this Judgment. - The Tribunal rules that Applicant’s pleadings on the merits must be narrowly tailored and relate only to those claims allegedly arising during the Second Period and deemed admissible by the Tribunal. The Tribunal will not consider any factual or legal claims raised by Applicant in connection with the First Period, nor any facts from the First Period except to the extent such facts are strictly used as context for the new factual claims arising in the Second Period. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Motion for Summary Dismissal of the Application in “SS” No. 2 is denied, and the pleadings on the merits shall resume taking into consideration the conclusions reached by the Tribunal in this Judgment. - Signatures and formalities: - Nassib G. Ziadé, President - Deborah Thomas-Felix, Judge - Maria Vicien Milburn, Judge - /s/ Nassib G. Ziadé, President - /s/ Paul Jean Le Cannu, Registrar - Washington, D.C. January 21, 2025 --- _Source: https://www.imf.org/-/media/files/imfat/j2025-1.pdf_