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Judgment No. 39
Complaint No. 62 María Elena Brocos v. Secretary General of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Alejandro Tinoco, President; Humberto García Ortiz, Vice President; John L.A. de Passalacqua, Judge, Has before it for judgment the proceedings on the complaint filed by María Elena Brocos against the Secretary General of the Organization of American States. The Complainant was represented by Juan F. Bauta, attorney, and the Secretary General by David Padilla, attorney of the Bureau of Legal Affairs of the General Secretariat, all in conformity with Article 22 of the Rules of Procedure of the Tribunal. WHEREAS: I. On June 8, 1978, the attorney for María Elena Brocos filed a complaint against the Secretary General of the Organization of American States, as authorized by the Statute of the Administrative Tribunal. After complying with the requirements as to her personal and official status, the Complainant explained the facts that had given rise to the complaint, and in this regard stated: That, as she is entitled to do because the Classification Standards have been applied to her in such a way as to reclassify her post at a level lower than it should be, she is by this pleading filing a complaint, through the Secretary of the Tribunal, against the Secretary General of the Organization of American States. That on September 6, 1977, she was sent Notification of Personnel Action No. 74480, by which her post was reclassified from G-5 to G-6 and she was promoted from the former to the latter grade. That on September 21, 1977, she started the procedure for a hearing by the Secretary General in order to have her post reclassified as a G-7 and to secure her own promotion to that level. That on September 30, 1977, the Assistant Secretary General, as Officer in Charge of the General Secretariat, confirmed the reclassification of her post to G-6 and promoted her to that level. That on October 12, 1977, she began the reconsideration procedure to have the error in the reclassification of her post corrected. That on January 25, 1978, the Joint Advisory Committee on Reconsideration submitted its recommendation to the Secretary General that "Miss María Elena Brocos be given the semi-professional grade of G-7." That on March 13, 1978, she was informed of the Secretary General's decision to confirm the measures taken by means of Notification of Personnel Action No. 74480. That the duties assigned to the post of "file technician," which the Complainant performs satisfactorily, make her individually responsible for a major segment of the work of the office where she is employed, and both their complexity and the amount of independent judgment required to carry them out promptly and efficiently require her to be classified at the G-7 level, according to the Classification Standards. That the complexity of her duties and the independence of judgment exercised are the same as or greater than is found in other G-7 semi-professional posts in the General Secretariat. That she prays the Tribunal: To take expert testimony by appointing an expert whose fees would be paid out of the budget allocations for the operations of the Tribunal, to determine:
That the decision she is challenging is the decision to classify her post as a G-6 and promote her to that grade, instead of making it G-7 in both cases. She prays the Tribunal to nullify this measure and order that the post reclassification and her promotion, both to G-7, should take effect as of the date on which the post was reclassified as a G-6 and she was promoted to that grade. That she also prays the Tribunal to order the General Secretariat to pay her the difference in salary and other benefits between the amount paid since she was promoted to G-6 and the amount payable to a G-7 during that period. That, lastly, she also prays the Tribunal to set whatever amount it deems appropriate for attorney's fees, to be paid to her by the General Secretariat. II. On July 12, 1978, the attorney for the Secretary General answered the complaint and stated: That the Secretary General accepts the basic personal and professional information given by the Complainant in her complaint brief. That the Secretary General denies that the Classification Standards were improperly applied or violated. That the Secretary General denies the Complainant's assertions that her duties are those of a G-7 post. That from August 9 to September 15, 1976, William S. Fradkin, who had been contracted specifically for the purpose, carried out a study and evaluation of 40 posts in the Office of Personnel, including that of the Complainant. That Mr. Fradkin had been contracted because it had been decided that it would be ill-advised, and perhaps improper, for the Office of Personnel to study its own organizational structure. As a result, Mr. Fradkin was contracted as an impartial expert analyst. On September 17, 1976, Mr. Fradkin sent his report to Ramón Alberto Salem, the Executive Officer of the Secretariat for Management. The report contained the following statements about the Complainant's post:
That in November of the same year, E. Patrick Healy, the then Director of the Office of Personnel, asked Mr. Fradkin whether, in his expert opinion, there was sufficient reason to classify the Complainant's post at the next higher level (G-6) "for incumbent only." That on January 21, 1977, Mr. Fradkin changed his recommendation on the Complainant's post to the following:
That on July 21 and 22, 1977, the Classification and Promotion Review Board considered Mr. Fradkin's report on the classification of posts in the Office of Personnel. That on July 26 of the same year, the Board transmitted its recommendations to the Secretary General for decision. They included the following recommendation on the Complainant's post:
That on July 29, 1977, the Secretary General approved the Board's recommendations, including the one on the Complainant's post. That on August 1, 1977, the Classification and Salary Administration Unit prepared a Personnel Action Request (PAR No. P50745) and under the heading "Comments," stated as follows:
That on August 9, 1977, Mr. Healy sent a memorandum to Gladys Moliné, chief of the Operations Unit of the Office of Personnel, instructing her to inform the staff members affected, including the Complainant, of the Secretary General's decision. That on August 16, 1977, the Personnel Action Request was changed: the words "for incumbent only" were crossed out in ink. That on the same day, James Schlotfeldt wrote a memorandum to the files explaining that the change had been made because the Office of Program and Budget had refused to process the PAR in the form in which it was written, saying that it caused difficulties with the computer processing and therefore had to be changed. That on August 31, 1977, the Complainant was sent Notification of Personnel Action No. NPA 74480 to inform her that her post had been reclassified and that she had been promoted to grade G-6 effective August 1, 1977. That grade G-6 is where semi-professional work begins in the hierarchy of grades. The Complainant's duties are those of an administrative assistant. Her job is basically to file materials in alphabetical order and then to organize them in chronological order, to keep the files, to deliver and collect dossiers, to direct the work of one G-4 file clerk, and to answer telephone inquiries about staff members' employment so that they may obtain financial credit outside the Secretariat. That Mr. Fradkin's conclusion as a consultant was that the Complainant's post "complies easily and fully with the requirements for classifications in G-5." That while the duties and responsibilities of the post were considered to be those of an administrative assistant and not of a semi-professional nature, the Office of Personnel asked Mr. Fradkin for his expert opinion on the possibility of applying the following provision of the Classification Standards to the present case:
That on the basis of this general principle, Mr. Fradkin finally recommended that the post should be reclassified to the G-6 level on an incumbency basis. That this meant a recognition of the fact that the Complainant's knowledge of the files and procedures enabled her to work with more independence and discretion than are normally expected of the post, and that the difference was enough to warrant a grade higher than the normal level for the post. That this recognition was based not on favoritism or on any subjective criterion but on the fact that the Complainant's experience clearly justified it according to the Classification Standards. That, by the same token a promotion to the G-7 level would have been totally inappropriate since the post was at the G-5 level and the increase to the G-6 level only because of the incumbent was due to the incumbent's long experience, knowledge of the files, and the degree of discretion, not to the duties and functions of the post per se. That the Secretary General would not object to the appointment of another expert to make an independent expert examination of this matter, although he considers it superfluous. That, convinced that justice has been done in this case, for the reasons set forth in this answer, the Secretary General prays the Tribunal: To dismiss the complaint in all its parts, with no compensation to the Complainant. To order testimony from the following witnesses: Julie Saadi, Millie Imirie, and William Fradkin. III. On July 21, 1978, the attorney for the Complainant presented his reply to the answer of the Secretary General, and on August 10 of the same year, the attorney for the Secretary General presented his response to the reply. IV. On August 23, 1978, the case was placed on the list of matters pending consideration, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal. Once the President had set the opening date of the regular session corresponding to the fourth quarter of the year, the pertinent steps were taken. V. On September 2, 1978, the attorney for the Complainant wrote to the Administrative Tribunal to report that the Secretary General had ordered him transferred to the position of Director of the Office of the General Secretariat in Paraguay effective October 15, 1978, which he confirmed by attaching a copy of the order. He would therefore be unable to be present at the oral proceedings to be held in this complaint if the Tribunal so decided. He therefore prayed the Administrative Tribunal to decide not to hold oral proceedings and also to arrange for subsequent notifications to be sent to him at the Office of the General Secretariat in Paraguay. The Tribunal was composed of Alejandro Tinoco, President; Humberto García Ortiz, Vice President; and John L.A. de Passalacqua, Judge. It deliberated on the case sub judice, and decided that, in accordance with Article 17 of the Rules of Procedure, it would take the testimony offered by the attorney for the Secretary General on October 27, 1978. It also decided to grant the Complainant's request that oral proceedings not be held. The hearing ordered for testimony took place on the day and at the hour indicated, and the statements of the witnesses were heard. On October 31, 1978, the Tribunal, feeling that it did not have sufficient information to be able to render a judgment, adopted Resolution No. 68, in which it ordered expert testimony in accordance with articles 16 and 17 of the Rules of Procedure. The Tribunal appointed John Brennan to conduct a desk audit of the post held by María Elena Brocos, and ordered that his report address the following points:
On April 18, 1979, the expert, John Brennan, submitted his report, which was added to the proceedings. On May 21, 1979, the Tribunal set a hearing for Thursday, May 24, 1979, at 4:00 p.m. so that the parties could question the expert in accordance with Article 17 of the Rules of Procedure. The hearing was held on the day and at the hour indicated, with the participation, in turn, of the representative of the Secretary General and the attorney for the Complainant. Oral proceedings followed immediately. The Tribunal then decided that further evidence was not necessary and, in accordance with Article 27 of its Rules of Procedure, designated one of its members to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: That it is competent to hear the present complaint, pursuant to Article II of its Statute. The issue raised is essentially whether the Secretary General's decision of September 30, 1977, confirming the reclassification of the Complainant's post to the G-6 level and promoting her to that level, violates her rights. The Administrative Tribunal holds that on the basis of its duties and level of responsibility, the post held by the Complainant should have been classified at the G-7 level. Under Staff Rule 102.3, the classification of a particular post depends on the nature of the duties, the level of responsibility, and the qualifications it requires. In his analysis of the duties and responsibilities of Miss Brocos's post, the expert answered the questions put to him by the Tribunal as follows:
If the duties performed by the Complainant are analyzed and compared with those pertaining to the G-5 level according to the Classification Standards, it is obvious, as is pointed out in the expert testimony, that the classification of Miss Brocos's post is not consistent with the Standards. It is also to be noted in this case that the job required Miss Brocos to be able to perform supervisory duties and tasks that require a high degree of creativity, good judgment, and the knowledge of a considerable number of procedures. The incumbent of the post works independently and submits to her supervisor only questions that require policy decisions. The standards applicable to grade G-5 do not indicate that this level demands the independence of judgment that is in fact required of the Complainant in the position she holds. According to the Classification Standards, a G-6 level indicates that the occupant of such a post must act with a certain amount of independence of judgment. In view of all the preceding points, the evidence submitted, and the expert testimony received, and certainly according to the Standard for the classification of this post, the position is at a level higher than G-5 in at least three fundamental ways:
Consideration must now be given to whether the Complainant's post exceeds the criteria set for G-6 posts in the Classification Standards. The Tribunal agrees with the expert's conclusions that the duties and responsibilities of Miss Brocos's post are of a higher level than those described in the Classification Standards for a G-6, because of both their complexity and the amount of discretion necessary. The Complainant's area of work involves a wider variety of tasks than does a G-6 post. The expert has also found that there is greater responsibility in terms of initiative and judgment, and that more training and experience is required. The amount of supervision the Complainant receives is also less than is normal for a G-6. The pertinent rule states that work at the G-7 level is subject to only minor review, but the volume and nature of the tasks and responsibilities of the post do not lend themselves to review of this kind. It is recognized that the incumbent is relied on to act with good judgment, discretion, and tact and to work with "a high degree of independence"; in addition to this, the incumbent brings to her job the high level of training and experience that is required to work at the G-7 level. The Complainant has been responsible for nine years for properly administering and supervising the active and inactive personnel files and the basic documents and records for financial control and personnel management. This is a major segment of the work of any organizational unit. By virtue of the foregoing, and pursuant to Article VII.1 and 2, the Tribunal unanimously RESOLVES: 1. To grant the petition to revoke the decision of the Secretary General that confirmed the measures taken in Notification of Personnel Action No. 74480 reclassifying the post as a G-6 and promoting the Complainant to that level. 2. To rule that the position held by the Complainant as a file technician in the Operations Division of the Personnel Office must be reclassified to the G-7 level. 3. To order that within a period of 30 days the Secretary General must approve a description of the duties Miss María Elena Brocos is currently performing, and promote her in accordance with the provisions of the preceding paragraph. 4. To order that the classification and promotion mentioned in paragraphs 2 and 3 above shall become effective as of September 21, 1977, and that the General Secretariat must pay the Complainant the difference in salary and other benefits to which she is entitled. 5. To set US$1,200 as the amount the General Secretariat must pay the Complainant for attorney's fees.
Let notification be given. Washington, D.C., June 1, 1979 Alejandro Tinoco, Esq. / President Humberto García Ortiz, Esq. / Vice President John L.A. de Passalacqua, Esq. / Judge Domingo E. Acevedo, Esq. / Secretary
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