1. This judgment is rendered by a Panel of the Tribunal established in accordance with Article V(2) of the Tribunal’s Statute, composed of Jan Paulsson, President, and Judges Stephen M. Schwebel, and Francis M. Ssekandi. The Application was received on 24 November 2008. The Applicant’s request for anonymity was granted on 21 July 2009.
2. The Applicant is one of sixteen current and former staff members working in the Bank’s Department of Institutional Integrity (“INT”) contesting decisions taken by the Bank in August 2008 not to award the entire relief, in particular monetary compensation, recommended by an INT Staff Grievance Review Panel (“Grievance Panel”).
3. The fact that the present Application forms part of this group of cases has had some unusual procedural implications. All the Applicants worked in INT, and they all allege variations on the same recurrent themes: a hostile work environment, unfair treatment, abuse of discretion, and violations of due process at the hands of INT management between October 2005 and January 2008. In recognition of the unusual circumstances presented, the Bank set up an ad hoc Grievance Panel to review the allegations made by the INT staff members. In response to the Applicants’s request for consolidation of the cases pursuant to Rule 27 of the Tribunal’s Rules, the Tribunal decided on 31 March 2009 that
4. INT was established in 2001 when the Anti-Corruption and Fraud Investigations Unit and the Business Ethics Office were merged, with the intent that it would take responsibility for the independent investigation of allegations of fraud and corruption in Bank Group operations, as well as certain allegations of staff misconduct.
5. In October 2005 the President of the Bank appointed Ms. X as Acting Director of INT. She became Director of INT in January 2006. At the time of her appointment, she was a Counselor in the Office of the President (“EXC”). In announcing her appointment as Director, the President confirmed that Ms. X would continue to serve in EXC “as my Counselor.” Ms. X’s tenure as Director was turbulent and disputatious within INT as well as in the Bank generally. There were acute controversies as to both principle and method. The claims made by the Applicant as well as the other fifteen staff members in INT are based on events that occurred during Ms. X’s tenure as Director.
6. Upon Ms. X’s appointment as Director, INT management began implementing a “comprehensive plan,” the purpose of which was stated to be the improvement of the “quality, consistency, and timeliness” of INT investigations. This included: (i) a new work program with higher performance expectations for INT staff; (ii) mandatory training workshops for all investigators; and most controversially (iii) performance improvement plans (“PIPs”) for INT staff with “technical shortcomings or behavioral issues.” The management of INT at the time acknowledged that it “fully understood that the PIPs would be controversial in many instances and generate tensions within the Department.” It nevertheless decided that it was essential to resort to these measures in order to improve INT’s performance.
7. Within a short period an unusually high rate of staff turnover was observed. In September 2006 a group of INT staff members sent an anonymous letter to the Bank’s Board of Directors and the World Bank Group Staff Association (“SA”) complaining about what they considered to be a hostile work environment in INT. They alleged harassment, retaliation based on allegations of disloyalty to INT management, verbal abuse, humiliation, favoritism, non-compliance with normal Human Resources (“HR”) practices and threats of termination of employment and revocation of G-4 visas. They also alleged arbitrary adverse personnel actions relating to their Overall Performance Evaluations (“OPEs”), Salary Review Increases (“SRIs”), PIPs, grade level classifications and compensation. In addition, they alleged a conflict of interest arising from Ms. X’s dual role as both Director of INT and Counselor to the President which, they contended, impeded INT’s ability to work independently and effectively because its work program and priorities were being dictated by EXC.
8. In the course of 2006 and 2007, several INT staff members reported to the Ombudsman concerns about Ms. X’s “abusive and retaliatory” management practices. They also complained about HR’s “ratification” of these practices. The Applicants contend that the Ombudsman confirmed that he had conveyed these concerns to the Bank’s senior management.
9. In the meantime, the Bank’s President and its Board of Directors established an independent panel of experts (“the Volcker Panel”) in March 2007 “to carry out a comprehensive review of INT to assess how it can best contribute to the Bank’s poverty reduction mission and to safeguard the institution from legal, fiduciary and other risks.” The focus of the Volcker Panel’s review was the scope of INT’s mandate and its relationship with other parts of the Bank. Its terms of reference also required it to assess and make recommendations regarding INT’s budget and staffing. In the course of the Volcker Panel’s work, several INT staff members were interviewed. In addition, the Volcker Panel interviewed the Vice President, Human Resources (“HRSVP”), and requested and received some data from HR.
10. The Volcker Panel issued its report in September 2007. With respect to the management and staffing issues, and as a consequence of the representations submitted by the INT staff, as well as responses from INT management, the Volcker Panel observed that “the number of PIPs used by INT far exceeds their relative use by any other unit within the Bank.” It also noted that the manner in which INT’s management resorted to PIPs was not in conformity with normal HR practice. The normal practice was stated to be as follows: (i) a staff member whose performance is not satisfactory will be advised of that fact and given the opportunity to improve “without management’s further intervention” in the first instance; (ii) if there is insufficient improvement, the staff member will ordinarily be asked to agree to a monitored work program; (iii) if the staff member still fails to improve, a formal PIP is imposed, and failure to comply with the terms of the PIP may result in termination of the staff member’s employment. In contrast to this practice, the Volcker Panel found that INT did not resort to the “intermediate management mechanisms” before placing “a relatively large number of staff” on PIPs, and that this had led to “resentment and a high level of uncertainty” among INT staff. It noted, however, that INT used PIPs in this manner with the concurrence of the designated HR representative in INT, and that Ms. X had advised the President of the Bank of the actions taken.
11. The Volcker Panel also noted that:
14. The 29 June 2007 e-mail message from HRSVP was communicated to the Bank’s senior management on 30 June 2007. The record before the Tribunal does not describe any action taken to address these concerns at that time.
15. On 15 December 2007 an “Open Letter to President Zoellick” signed by “INT staff members” was sent by e-mail to several addressees (including the President’s Chief of Staff, the Bank’s Managing Directors and some Executive Directors), reporting serious concerns about Ms. X’s management of INT. In response to this message, a second set of e-mail messages was sent by “Dedicated INT Staff Members” on 16 and 17 December 2007 to the Bank’s senior management, alleging misconduct by several INT staff members and publicizing sensitive details of their personal lives.
16. In January 2008 President Zoellick (who had taken office in July 2007) ordered an inquiry into the allegations contained in the messages of 16 and 17 December 2007, containing specific allegations against certain INT staff members, but significantly not the allegations made against Ms. X in the 15 December 2007 email. The Acting General Counsel who carried out the investigation found, in each case, no evidence to support the allegations against the named INT staff. Ms. X resigned from the Bank in January 2008.
17. That same month, INT’s Acting Director decided to address the concerns of INT staff members, in particular their allegations of mistreatment by the management of INT during Ms. X’s tenure, by establishing the Grievance Panel. The Panel’s Terms of Reference provided as follows:
The panel will review statements submitted by INT staff members challenging the fairness of decisions made during CY 2006 and CY 2007 regarding [OPEs, SRIs, PIPs], grade level classifications and compensation, and other actions affecting their careers. The panel’s responsibility is to make judgments whether the decisions being challenged were fair, in accord with the Bank’s Staff Rules and relevant policies and procedures, and to recommend restitutive actions, if appropriate.
INT staff members should submit three copies of statements of their claims to INT’s Acting Director. The statement is not to exceed three pages. The staff member may attach up to ten relevant documents to the statement. …
INT’s Acting Director will designate an INT manager or other INT staff member to prepare a written response to the statement within ten working days …. The written response is not to exceed three pages.
The panel will schedule a meeting to review the statement and the written response. The meeting will be attended by the panel, the HR liaison officer, the staff member, and the management designee; the staff member may request the presence of a Staff Association Staff Relations Officer or an Ombudsman. If the staff member requests, the panel will arrange to meet him or her without the management designee present …. There will be no transcript of the meeting. …
The panel will endeavor to issue its findings and recommendations to INT’s Acting Director for review and decision within ten working days of the meeting. The Acting Director has the discretion to accept the panel’s findings and recommendations in whole or in part or to reject them.
19. Twenty-one staff members, including the Applicant, filed statements with the Grievance Panel. As provided by the Grievance Panel’s Terms of Reference, INT’s Acting Director designated a Lead Institutional Integrity Officer, Wayne Nardolillo, who served as the Manager of INT’s Internal Unit and was one of Ms. X’s former deputies, to prepare a written response to the statements filed with the Grievance Panel. As part of the responses from management, Mr. Nardolillo submitted an “Affirmation” which records in the first sentence that he had been asked, and agreed, “to act as management’s representative in connection with the INT Staff Grievance Review Panel.” The Affirmation included the following remarkable passages:
[Ms. X] displayed behavior that was unethical, including: being manipulative; engaging in acts of deception; and habitually making willful material misrepresentations of fact to her staff …; being verbally abusive; … engaging in tactics of intimidation; retaliating against staff ….
Having led the Internal Investigations function within the Bank Group for the last nine years, I have received and reviewed hundreds of allegations of staff misconduct. Among the cases have been scores of complaints from staff who allege abusive, hostile, harassing, and/or retaliatory conduct on the part of their supervisors or managers. To help put [Ms. X’s] apparent behavior and actions in perspective … in my professional judgment, none of these workplace misconduct cases as alleged compared to the level of egregiousness, intensity, and frequency of the apparent abusive, hostile, harassing, and retaliatory behavior [Ms. X] subjected INT staff during her tenure as INT Director.
21. The Grievance Panel concluded that there was no basis to disagree with the accounts of mistreatment reported to it, and found in favor of the aggrieved staff members. In a memorandum to INT management, the Grievance Panel described the guidelines it followed in making its recommendations:
a. “The Organizations shall at all times act with fairness and impartiality and shall follow a proper process in their relations with staff members … They shall respect the essential rights of staff members that have been and may be identified by the World Bank Administrative Tribunal.” (Principle of Employment 2, Para. 2.1)
b. “Supervisors shall at all times treat staff in a fair and unbiased manner. Treatment of staff shall not be influenced by personal ties between the supervisor and the staff member, nor shall it be influenced by race, nationality, sex, religion, political opinions, or sexual orientation of the supervisor or staff member.” (Staff Rule 3.01, Para. 4.01)
c. “Retaliation by a staff member against any person who in good faith provides information about suspected misconduct, or who uses the Conflict Resolution System, is expressly prohibited and can subject a staff member to disciplinary action…” (Staff Rule 8.01, Para. 2.03)
In determining recommended compensation, the Panel grouped together several grievance categories under the heading “hostile work environment.” For each case, the Panel assessed the duration of the hostile work environment experienced by the grievant, and in some cases differentiated between differing levels of hostility.
In addition, the Panel considered that some individuals were targeted by INT management and subject to abuse, threats of retaliation, and/or threats of PIPs. With targeting too, the Panel assessed the length of time during which the grievant was targeted.
The Panel was cognizant of the personal and professional impact of unfair and unwarranted Performance Improvement Plans, all of which were applied to staff with G-4 visa status. The Panel also took note of significant procedural delays in completing HR actions in a number of cases. While delays occur in many Bank units, the Panel concludes that INT Management used delays selectively as retaliatory action in these cases.
Beyond the facts of individual grievances, the amounts of compensation recommended are intended to ensure, in the interests of all staff members and the Bank, that managerial behavior at least meets minimum standards. (See Administrative Tribunal “N” decision no. 362.) (Emphasis in original.)
23. All Applicants have advanced two identical grievances which the Tribunal finds appropriate to dispose of en bloc since they are generic to all of them.
The Bank’s refusal to implement the Grievance Panel recommendation in full
24. All the sixteen Applicants complain that they had been led by the Bank to believe that the Grievance Panel would have full authority to recommend unqualified relief, including monetary compensation, and that it was wrongful of the Bank to refuse to adopt the recommendations in full. This alleged unfairness is said to have compounded their injury and to warrant additional compensation.
25. With respect to this common grievance, the Tribunal disagrees. The Terms of Reference of the Grievance Panel contain the following statements regarding its mandate:
(ii) “The panel’s responsibility is to make judgments regarding whether the decisions being challenged were fair, in accord with the Bank’s Staff Rules and relevant policies and procedures, and to recommend restitutive actions, if appropriate”; and
(iii) INT management “has the discretion to accept the panel’s findings and recommendations in whole or in part or to reject them.” (Emphasis added.)
27. The sixteen Applicants allege that, regardless of the Grievance Panel’s Terms of Reference, representations were made to them that the findings and recommendations of the Grievance Panel would be binding on INT management. The Tribunal finds that the record does not establish that management agreed in advance that it was bound to implement all the recommendations of the Panel. It therefore concludes that the Bank did not abuse its discretion by refusing to implement the recommendations in full. The Tribunal does not consider the Grievance Panel to have been a judicial body, nor its recommendations to be entitled to any presumption that they were based on evidence that could withstand the rigours of a formal adversarial process. Such was not its purpose, or the tenor of its Terms of Reference.
28. The Tribunal notes in particular that the Bank considers that the Grievance Panel exceeded its mandate in recommending lump-sum awards “beyond restitution for specific administrative actions” such as recoupment of salary grade, and that it made “profound missteps” in recommending lump sums “so that management would be deterred from repeating the acts in question.” There is merit in the Bank’s contention. Even the Tribunal has no mandate to make punitive awards. Its judgments may have an exemplary effect, not so much by way of making restitution to the particular applicant as seeking to ensure that the Bank takes remedial action in the interest of all staff members. But the cases considered by the Grievance Panel clearly had the full attention of the Bank, which constituted the Grievance Panel precisely in order to achieve remediation. The Tribunal notes that, of the sixteen Applicants, one was an Extended Term Consultant who has since left the Bank’s employment; the remaining Applicants continue to be employed by the Bank. The generic issues raised by this group of sixteen cases pertain to a particular period of time and a particular environment which, it is perfectly evident, the Bank does not seek to perpetuate. The Tribunal proceeds on the basis that remedies beyond the significant measures adopted in implementation of the Grievance Panel’s recommendations should be evaluated on an individual basis except as indicated below.
The stifling of access to the Bank’s internal grievance mechanisms
29. All the Applicants also assert that they were intimidated from bringing their claims into the ordinary Conflict Resolution System (“CRS”), which at that time included this Tribunal, during Ms. X’s tenure. In response, the Bank argues that the Applicants have failed to adequately demonstrate that they were prevented from making complaints about INT management using the CRS or experienced retaliation as a result.
30. Principle 2.1 of the Principles of Staff Employment provides in relevant part as follows:
32. The Applicants included as evidence a statement made by the applicant in AL, Decision No.409 , which contains a record of a conversation between that applicant and Ms. X regarding a colleague who was on a PIP, and reads as follows:
This conversation confirmed to me what I had suspected for a long time. I could not exercise my rights as a staff member to complain or lodge a grievance against [Ms. X’s] harassment or abusive behavior. I had no confidential avenue within the Bank workplace to address my complaints without fear of retaliation.
THE PRESENT APPLICATION
35. The Applicant joined the Bank in 2002. At the relevant time he was a level GG Senior Institutional Integrity Officer with INT. He filed his statement with the Grievance Panel on 3 April 2008, alleging a hostile work environment, unfair treatment, abuse of discretion, and violations of due process. On 28 July 2008 the Grievance Panel concluded that
37. By letter of 26 August 2008, the new Vice President of INT decided not to accept the Panel’s recommendation for monetary compensation. He explained that he did not believe “that it is appropriate for management to determine whether compensatory damages are warranted” and that “the Panel may have misconstrued its mandate with respect to restitutive actions.” By the same letter, the Applicant was permitted to seise the Tribunal directly to contest the denial of compensatory damages.
38. The Applicant seeks the following relief from the Tribunal: (i) payment of the $115,000 net of taxes, for violations that occurred prior to 3 April 2008 (i.e. the date the Applicant filed a statement with the Grievance Panel); and (ii) the equivalent of twelve months’ salary, net of taxes, for violations that occurred subsequent to 3 April 2008. He also seeks attorneys’ costs in the amount of $32,026.17.
THE PARTIES’ CONTENTIONS
39. The Applicant contends that he was subjected to retaliation by INT management, for which he is entitled to monetary relief. He claims that INT management wrongfully denied him a promotion; he was falsely maligned in an anonymous e-mail message that the Applicant alleges was sent by Ms. X; and Ms. X repeatedly questioned his use of authorized leave and forced him to move offices while he was in the middle of a very busy project, for no legitimate reason.
40. In response, the Bank argues that the Applicant has not been treated improperly and that none of the Applicant’s claims of mistreatment are substantiated; even if they were, they would not amount to a violation of the Bank Rules. It argues that the Applicant had, and continues to have, a successful career at the Bank, as evidenced by his promotion to deputy to the Lead Institutional Integrity Officer and his substantial salary increases. The Bank further argues that the Applicant failed to introduce facts supporting a claim of individualized wrongdoing that amounts to a violation of his terms of employment (Njovens, Decision No. 294 , para. 17). The Bank submits that the Applicant is not entitled to the relief being sought as he has not established that he suffered any personal or professional harm. The Bank argues that, if the Tribunal were to determine that he is entitled to monetary compensation, it should authorize an award that is consistent with the Tribunal’s precedents.
THE TRIBUNAL’S ANALYSIS AND CONCLUSIONS
41. Decisions that are arbitrary, discriminatory, improperly motivated, carried out in violation of a fair and reasonable procedure, or lack a reasonable and observable basis, constitute an abuse of discretion, and therefore a violation of a staff member’s contract of employment or terms of appointment. See De Raet, Decision No. 85 , para. 67; Marshall, Decision No. 226 , para. 21; Desthuis-Francis, Decision No. 315 , para. 19. The Applicant’s allegations will be examined according to this standard.
42. The Applicant contends that he was subjected to unjustified personnel actions, refused promotion within INT and harassed because he refused to comply with Ms. X’s directives which he considered to be unethical and a violation of INT policies, because he spoke with the Volcker Panel and because he was perceived as being disloyal.
43. Paragraph 2.03 of Staff Rule 8.01, in force at the relevant time, provides as follows:
Abusing the authority that [Ms. X] possessed in INT, she subjected [the Applicant] to many episodes of retaliation. Taken severally, they appear to be nothing more than inconsequential administrative actions. However, taken together, these acts, such as directing [the Applicant] to move his office during a very busy period of output for him and for which there was no exigent business need, or taking a particular interest in when he took his AWS days, were designed to humiliate him and designed to let him know that [Ms. X] was in charge. I know this because I was present when she would seek to justify her actions, for which there was no justification.
47. In this regard, one of the Applicant’s principal contentions is that INT management retaliated against him by denying him promotion. He claims that the Lead Institutional Integrity Officer had sought to make him his deputy and proposed that he be moved to a vacant level GH position in the Department. The Applicant claims that Ms. X dismissed this proposal, allegedly because he was “disloyal” and Ms. X would never consider promoting him. After some persuasion, Ms. X agreed to let him serve as the Lead Institutional Integrity Officer’s deputy, but would not consider him for a promotion in grade. The Lead Institutional Integrity Officer confirms the Applicant’s allegations, as does Mr. Nardolillo.
48. The Bank argues that the Applicant had, and continues to have, a successful career at the Bank; he was promoted to be deputy to the Lead Institutional Integrity Officer and received salary increases amounting to more than 17 per cent over the course of Ms. X’s tenure at INT. The Bank submits that these positive career developments are inconsistent with his claims that Ms. X inhibited or limited his success at the Bank. While the Bank does not deny that it is possible that there was tension between him and Ms. X, it submits that this reflected a personality conflict that should not be the basis for an award of monetary damages (citing Caronjot, WBAT Decision No. 178 ; and Sweeney, WBAT Decision No. 239 ). The Bank submits that the Applicant’s complaint about Ms. X’s purported refusal to promote him to the level GH position of the deputy of the Lead Institutional Integrity Officer is without merit, as the Applicant had no entitlement to a GH salary grade and because he actually got the position he desired. In addition, the Bank submits that it is usual practice to require competition for level GH positions, and that Ms. X’s decision not to take an exceptional and extraordinary action by promoting the Applicant to the level GH salary grade without a competitive process was proper and consistent with Bank practice.
49. In Jassal, Decision No. 100 , para. 30, the Tribunal stated that “a decision by the Bank to select a staff member for a particular position rests within the Bank’s discretion, and may be overturned by the Tribunal only when it concludes that this discretion has been abused.” As the Bank correctly points out, a promotion to a GH level position is a normally the result of a competitive process. The Applicant has not provided any information regarding a selection process, such as whether the position was ever posted and if so, whether he applied for it. The Tribunal thus concludes that the Applicant has not demonstrated that the Bank abused its discretion in denying him a promotion. This finding will be reflected in the amount of compensation awarded to the Applicant for retaliation.
E-mail messages in which the Applicant was maligned and the Bank’s response thereto
50. The Applicant was one of five INT staff members who were named and maligned in the anonymous e-mail message of 16 December 2007, described at paragraph 15 above. Specifically, the anonymous message made several allegations about the Applicant, including cheating the Bank out of annual leave, abusing the Bank’s administrative budget, being incompetent at his job and allowing favoritism by his manager to shield him from having to perform professionally.
51. The Applicant claims that this message was sent by Ms. X in response to the previous anonymous e-mail message of 15 December 2007, which was sent to the Bank’s senior management reporting concerns with Ms. X’s management of INT. In support of this allegation, the Applicant relies on the following statement from Mr. Nardolillo:
53. In response, the Bank argues that it should not be held liable for the anonymous e-mail messages; any action that the Bank may have taken would have been based on circumstantial evidence alone, as it has no authority to compel authorship information from Internet service providers. It points out that it conducted a preliminary assessment of the allegations so that it could confirm that these anonymous allegations against the Applicant were without merit. It contends that there is no evidence to support the claim that the Applicant’s professional reputation was damaged.
54. The Tribunal notes that the e-mail message containing the allegations against the Applicant was sent on 16 December 2007. In January 2008, the Bank undertook a review of those allegations. In March 2008, the Bank informed the Applicant that the allegations had no basis, but he declined the Bank’s offer to circulate its findings to the recipients of the e-mail message in which he was maligned. That same month, the Bank established the Grievance Panel to address the concerns of INT staff regarding INT management. The Tribunal does not consider that these actions by the Bank were unreasonable. Furthermore, the Applicant has not adduced evidence to demonstrate that the e-mail message damaged his professional reputation.
The Tribunal decides that:
(ii) the Bank shall pay the Applicant six months’ salary, net of taxes, as additional compensation for the established claims of retaliation;
(iii) the Bank shall pay a contribution of $25,000 towards the Applicant’s attorneys’ fees; and
(iv) all other claims are dismissed.
/S/ Olufemi Elias
At Washington, DC, 9 December 2009