## Administrative Tribunal of the International Monetary Fund — Introduction (j1997-1) ## Source details **Canonical URL:** [Administrative Tribunal of the International Monetary Fund — Introduction (j1997-1)](https://www.imf.org/-/media/files/imfat/j1997-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j1997-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j1997-1.pdf.json) --- ### Tribunal proceeding and procedural history - The Administrative Tribunal of the International Monetary Fund met on August 21 and 22, 1997, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought by Ms. “C.”, a former staff member of the Fund. - Applicant employed from August 5, 1992 until August 4, 1995 on a two-year fixed-term appointment plus a one-year extension. - Applicant filed an Application on January 17, 1997 challenging the Fund’s decision not to convert the fixed-term appointment into a regular staff appointment on the ground of unsatisfactory performance, alleging arbitrariness, caprice, discrimination, and causal relation to complaints she made about remarks she characterized as sexual harassment. - The Fund filed an Answer on March 31, 1997; a Reply and a Rejoinder were filed on May 2 and June 5, 1997 respectively. - Oral hearings were not held before the Tribunal; the Tribunal considered a transcript of oral hearings by the Fund’s Grievance Committee that included testimony from Applicant, senior Administration Department officials, and witnesses. - The Tribunal rendered its decision in Washington, D.C., on August 22, 1997. ### Allegations of harassment and Fund response - Applicant alleges two incidents in 1993 of remarks by her Division Chief, Mr. “A.”, once in spring 1993 and again on December 6, 1993, which she regarded as sexually harassing. - Applicant reported the December 6, 1993 remarks to the Deputy Director of the Department three days later; she asserts the Deputy Director promised to talk to Mr. “A.”, secure an apology, and offered to recommend a raise and promotion if she would drop the harassment issue. - Applicant alleges the Administrative Officer advised her not to pursue the matter further. - The Tribunal found it unnecessary to decide whether the incidents qualified as sexual harassment; it described the remarks as “tasteless and misplaced,” noted there were only two remarks separated by some six months, and concluded Applicant could reasonably have believed she was an object of sexual harassment and could have made an accusation in good faith. - The Director of Administration investigated and concluded the incidents did not merit disciplinary action or amount to an abuse of authority; the Tribunal did not find these facts sufficient to demonstrate a deliberate “cover-up.” - The Fund’s Policy on Harassment (January 1995) was quoted: definition includes behavior that “unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment,” and states the Fund is committed “to stop harassment and associated retaliatory behavior” and that complainants are protected against reprisal (Policy on Harassment, January 1995, p. 1 and p. 4). ### Performance reviews, promotions, salary, and procedural irregularities - Initial appointment: Staff Assistant, grade A4, salary of $28,850 p.a., commencing August 5, 1992. - First Annual Performance Report (APR) covered to August 1993; signed December 21, 1993 (supervisor), January 19, 1994 (review officer), and February 24, 1994 (Department Head). Appraisal: positive technical competence but noted pressure affected relationships and recommended “a calmer demeanor in pressure situations.” - Second APR covered early August 1993 through December 1993; signed May 2–4, 1994. Supervisor’s “Overall Assessment” was favorable. - Outcomes from the second APR: - Performance rating: “2" - Merit award: 2.0 percent - Promotion to grade A5 - Salary increase to $30,610 p.a. - APR proposed a one-year extension until August 1995 rather than conversion to regular staff. - Memorandum for Files (August 29, 1994) confirmed transfer to Staff Benefits Division, ADM, effective August 29, 1994, for remainder of fixed-term assignment expiring August 4, 1995; after approximately nine months a written assessment and recommendation on conversion would be prepared. - Applicant signed the letter of appointment for the one-year extension on August 17, 1994. - Third APR covered January 1, 1994 to December 31, 1994; prepared February 1, 1995 by ADM supervisor Mr. “B.”, signed February 27–28, 1995 and Department Head on May 1, 1995, assigning a rating of “3". - After March 29, 1995 events, an updated third APR delivered to Applicant replaced the “3" rating with a “2" rating, a merit award of 1.2 percent, and a new salary of $30,980 p.a.; the report included notation that Applicant had been absent since March 29, 1995 and had not been able to improve her performance (review officer signature dated July 28, 1995; Director of ADM signed July 31, 1995). ### Interpersonal complaints, March 1995 meeting, and leave - In early March 1995 three immediate co-workers separately approached Mr. “B.” with complaints about Applicant’s interpersonal behavior. - Complaints communicated to Applicant on March 29, 1995 alleged she was rude and condescending, acted like a “know it all”, did not seek consensus, blamed others, and was not a team player. - Applicant requested to confront accusers; Mr. “B.” declined citing confidentiality; Applicant called in sick the next day, was referred to the World Bank medical department, placed on sick leave, and never returned to work. - Mr. “B.” memorialized the March 29, 1995 meeting in a Memorandum to File appended to the third APR. ### Grievance Committee, appeals, and Fund position - Applicant filed a Grievance with the Fund’s Grievance Committee; the Committee issued its Recommendation and Report to the Managing Director on October 17, 1996, upholding the Fund’s decision. - On November 6, 1996, Applicant was informed the Grievance Committee’s recommendation had been accepted. - Applicant appealed to the Director of Administration on November 27, 1995; the Director rejected the appeal on December 11, 1995. - The Fund’s principal contention before the Tribunal: Applicant did not meet the high standards regarding interpersonal skills requisite for conversion to regular staff; conversion is discretionary and concerns about interpersonal relations justified refusal to grant a regular appointment. ### Tribunal’s legal analysis and findings on procedural fairness - Burden of proof: Applicant, as fixed-term appointee, bears the burden of proof. - The Tribunal examined allegations of harassment, Fund reaction, modalities of transfer to ADM, and performance assessments leading to nonconversion. - The Tribunal identified procedural due process requirements: adequate warning, notice of reasons for nonconversion, and meaningful opportunity to rebut allegations. - The Tribunal found: - First and second APRs alerted Applicant that reservations about relations with colleagues existed, though those APRs remained generally favorable. - The abrupt reversal of the third APR at the March 29, 1995 session lacked procedural fairness because Applicant was confronted with allegations without specific, rebuttable incidents and was not afforded a meaningful opportunity to rebut coworker evidence. - Upon extension and transfer to ADM, Applicant should have been told precisely why she was not converted at end of two years and what steps to take to correct perceived interpersonal problems; neither appears to have been done. - It was not inappropriate for ADM to be informed of prior performance difficulties; transfers may involve explanations of reasons for transfer and prior issues. ### Tribunal’s substantive conclusions and remedies - The Tribunal concluded: - Applicant’s allegation that nonconversion was in reprisal for her harassment complaint was unfounded. - Applicant did not meet the burden of showing an abuse of discretion by the Fund in refusing to convert her appointment. - Nevertheless, procedural imperfections and irregularities were present and the Fund was liable in part for those procedural failings. - Two principal procedural irregularities identified: 1. Upon extension and transfer to ADM, Applicant was not told (a) precisely why she was not converted to permanent status at the end of two years and (b) what steps she needed to take to correct perceived interpersonal problems. 2. At the March 29, 1995 session, the earlier positive appraisal was reversed without presenting Applicant with specific and rebuttable incidents or affording a meaningful opportunity to rebut coworker evidence. - Remedies ordered by the Tribunal: - Application dismissed insofar as it requested rescission of the decision not to convert the fixed-term appointment to a permanent appointment. - The Fund ordered to pay compensation to Applicant for the specified irregularities in the sum equivalent to six months of salary as her salary was established as of August 4, 1995. - Applicant awarded reasonable costs of her legal representation; compensable costs to be agreed between Applicant and the Fund or assessed by the Tribunal if no agreement is reached. *Administrative Tribunal of the International Monetary Fund, Decision, Washington, D.C., August 22, 1997.* ### Introduction ### Introduction ### Tribunal proceeding and procedural history - The Administrative Tribunal of the International Monetary Fund met on August 21 and 22, 1997, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought by Ms. “C.”, a former staff member of the Fund. - Applicant was employed with the Fund from August 5, 1992 until August 4, 1995 on a two-year fixed-term appointment plus a one-year extension. - On January 17, 1997, Applicant filed an Application challenging the Fund’s decision not to convert the fixed-term appointment into a regular staff appointment on the ground of unsatisfactory performance, alleging that the decision was arbitrary, capricious and discriminatory and causally related to complaints she had made about remarks she characterized as sexual harassment. - The Fund filed an Answer on March 31, 1997, maintaining the decision was proper given Applicant’s history of interpersonal problems and asserting no abuse of discretion. - A Reply and a Rejoinder were filed on May 2 and June 5, 1997 respectively. - Oral hearings were not held before the Tribunal; the Tribunal had the benefit of a transcript of oral hearings by the Fund’s Grievance Committee that included testimony from Applicant, senior Administration Department officials, and witnesses. ### Applicant’s allegations and immediate responses - Applicant alleges two incidents in 1993 of remarks by her Division Chief (referred to as Mr. “A.”), once in the spring of 1993 and again on December 6, 1993, which she regarded as sexually harassing. - Three days after the December 6, 1993 incident, Applicant reported the remarks to the Deputy Director of the Department seeking redress; she asserts the Deputy Director promised to talk to Mr. “A.” and secure an apology and offered to recommend a raise and promotion if she would drop the harassment issue. - Applicant alleges the Administrative Officer of the Department advised her not to pursue the matter further. ### Performance reviews, ratings, promotions, and salary figures - Initial appointment: Staff Assistant, grade A4, salary of $28,850 p.a., commencing August 5, 1992. - First Annual Performance Report (APR) covered to August 1993; signed by Mr. “D.” on December 21, 1993, review officer on January 19, 1994, Department Head on February 24, 1994. Appraisal stated: - “Ms. [“C.”] started her work in the Fund with a very positive attitude. She is technically very competent ... From the beginning, Ms. [“C.”] has carried out her work effectively and reliably. Under occasionally more intense work pressure, Ms. [“C.”] continues to deliver quality work, but allows the pressure to affect her normally good relationship with other members of the division. ... I believe that, with a calmer demeanor in pressure situations, Ms. [“C.”] can assume rapidly growing responsibility in her present career stream, while at the same time pursuing her further career goals.” - The first APR does not appear to include a performance rating. - Second APR covered the five-month period from early August 1993 through the end of December 1993; signed by Mr. “D.” on May 2, review officer on May 3, Department Head on May 4, 1994. Supervisor’s “Overall Assessment” stated: - “Solid technical skills and increasing experience in the Fund have enabled Ms. [“C.”] to perform well as staff assistant ... I believe that, in the period ahead, Ms. [“C.”]’s growing experience at Fund work and her efforts at fitting into the institution will pay off, not least in terms of greater job satisfaction for herself.” - Outcomes from the second APR: - Performance rating: “2" - Merit award: 2.0 percent - Promotion to grade A5 - Salary increase to $30,610 p.a. - APR proposed a one-year extension of the fixed-term appointment until August 1995 rather than conversion to regular staff. - Memorandum for Files (August 29, 1994) confirming transfer arrangements to Staff Benefits Division, Administration Department (ADM): - Transfer effective August 29, 1994, for remainder of fixed-term assignment expiring August 4, 1995. - After approximately nine months, a written assessment and recommendation as to conversion would be prepared for Recruitment and Staff Development Divisions. - If conversion did not occur, Applicant would have a two month period to seek other employment outside the Fund. - Applicant signed the letter of appointment for the one-year extension on August 17, 1994. - Third APR covered January 1, 1994 to December 31, 1994; prepared February 1, 1995 by ADM supervisor Mr. “B.”, including input from former AFR supervisor. Mr. “B.” held a performance discussion on February 27, 1995 and signed that day; review officer signed February 28, 1995; Department Head signature was finalized on May 1, 1995. - On May 1, 1995, the Department Head signed off the third APR assigning a rating of “3". - After March 29, 1995 events (see “Interpersonal complaints and leave” below), an updated version of the third APR was later delivered to Applicant with the “3" rating replaced by a “2" rating, a merit award of 1.2 percent, and a new salary of $30,980 p.a. That report included a notation by the review officer (signature dated July 28, 1995) that Applicant had been absent since March 29, 1995 and had not been able to improve her performance. The report was signed by the Director of ADM on July 31, 1995. ### Interpersonal complaints, March 1995 meeting, and sick leave - In early March 1995, while Applicant was on vacation, three immediate co-workers separately approached Mr. “B.” with complaints about Applicant’s interpersonal behavior in the Division. - Complaints communicated to Applicant on March 29, 1995 included accusations that she was rude and condescending, acted like a “know it all”, did not try to work towards consensus, blamed others when she performed a function incorrectly, and was not a team player. - Applicant requested to confront her accusers; Mr. “B.” declined, citing confidentiality and focusing on the substance rather than identity of complainants. - Applicant was visibly surprised and deeply upset, called in sick the next day, was referred to the medical department of the World Bank, placed on sick leave, and never returned to work. - Mr. “B.” memorialized the March 29, 1995 meeting in a Memorandum to File dated March 30, 1995 appended to the third APR. ### Fund’s record and asserted grounds for non-conversion - The Fund’s Answer and Rejoinder assert an extensive record of complaints about Applicant’s behavior both before and after her allegations of sexual harassment, including: - Disruptive behavior during a training course. - Confrontational reaction to admonitions concerning unsatisfactory performance (e.g., failure to follow instructions correctly and in a timely manner). - Inability to cope well under pressure. - Testimony to the Grievance Committee indicated a pattern of interpersonal difficulties unrelated to the alleged harassment incidents; Applicant was characterized as assertive, at times belligerent, defensive, and unable to understand and accept legitimate criticism. - On May 10, 1995, the Fund officially informed Applicant that her employment would expire in August at the termination of the one-year extension of the original two-year appointment, in view of the performance information communicated to her by Mr. “B.”. ### Appeal and administrative actions - On November 27, 1995, Applicant sent a letter appealing the decision not to convert her appointment to the Director of Administration. - The Director of Administration rejected the appeal on December 11, 1995. - Prior to transfer to ADM, Director of Administration Mr. Graeme Rea concluded that the decision not to convert the appointment had been taken on the merits and was not a reprisal; he found the incidents, even if as alleged, did not rise to the level of sexual harassment. Mr. Rea elected that any decision on conversion should be made in a new environment under different supervisors to avoid perception of influence by the prior complaint; consequently Applicant was transferred to ADM effective August 29, 1994. *Administrative Tribunal of the International Monetary Fund — Introduction (j1997-1)* ### 1995. Thereupon, Applicant filed a Grievance with the Grievance Committee of the Fund, ### j1997-1 - 1995. Thereupon, Applicant filed a Grievance with the Grievance Committee of the Fund, ### Background and procedural history - Applicant filed a Grievance with the Grievance Committee of the Fund, which issued its Recommendation and Report to the Managing Director on October 17, 1996, upholding the Fund’s decision. - On November 6, 1996, Applicant was informed that the Grievance Committee’s recommendation had been accepted. - Applicant filed an Application with the Tribunal on January 17, 1997. - The Tribunal rendered its decision in Washington, D.C., on August 22, 1997. ### Parties’ principal contentions - Applicant’s principal arguments: - The Fund’s decision not to convert her fixed-term appointment to a regular staff appointment on the ground of unsatisfactory performance was unlawful and retaliatory for complaints of sexual harassment she made against her supervisor in the African Department. - The complaints were allegedly the subject of a “cover-up” rather than effective responsive action. - She was misled by promises allegedly made by the Director of Administration that her performance in the Administration Department (ADM) would be evaluated free from the hostile influence of the African Department (AFR); the promises were false and the Fund never intended to convert her appointment following extension and transfer. - The extension instead of conversion was inconsistent with a promotion and salary increase she received at the end of the second year and a favorable second APR, suggesting deficient performance was a pretext. - The ultimate assessment by her new supervisor was tainted by information supplied by AFR. - In ADM she was not put on notice of alleged interpersonal difficulties, was taken by surprise by accusations made at the March 29, 1995 meeting, was not supplied specifics of alleged deficiencies, and was not afforded opportunity to rebut — violating elemental principles of law. - Fund’s principal contention: - Applicant did not meet the high standards regarding interpersonal skills requisite for conversion to regular staff. - Concerns about interpersonal skills surfaced throughout Applicant’s career, including instances of confrontation, a belligerent style, difficulty accepting instruction, and unwillingness to consider fault. - Such performance problems had arisen in different contexts under different supervisors and co-workers. - Conversion is discretionary and where serious doubt exists about qualifications, including interpersonal relations, refusal to grant a regular appointment is appropriate. ### Issues examined by the Tribunal - Burden of proof: Applicant, having held a fixed-term appointment, bears the burden of proof. - The Tribunal examined: - Allegations concerning the incidents of harassment. - Reaction to her complaints by Fund officials and whether that reaction amounted to a “cover-up.” - Modalities of transfer to ADM. - Assessments of her performance and the final nonconversion decision. ### The issue of sexual harassment - The Tribunal found it unnecessary to decide whether the incidents qualified as sexual harassment or inappropriate behavior. - Remarks attributed to Applicant’s AFR supervisor Mr. “A.”: - Were not denied, should not have been made by a Fund supervisor to a subordinate on Fund premises, and were “tasteless and misplaced.” - There were only two remarks separated by some six months; whether they formed a pattern was open to question. - The second remark occurred in a conversation Applicant could earlier have terminated. - The Tribunal concluded: - Applicant could reasonably have believed she was an object of sexual harassment and could have made an accusation in good faith. - Sustainability of an allegation is not a pre-condition for finding reprisal in response to that allegation. - The Fund’s reaction: - Applicant pursued complaints to the Deputy Director of AFR, the Head of AFR, and then to the Director of Administration, Mr. Rea. - The Director investigated and concluded the incidents did not merit disciplinary action or amounted to an abuse of authority. - The Tribunal did not find these facts sufficient to demonstrate a deliberate “cover-up” by the Fund. - Relevant Fund policy (Policy on Harassment, January 1995) quoted by the Tribunal: - Definition: “... any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment. Sexual harassment includes sexual assault, unsolicited requests for sexual favors, requests for sexual favors linked to implied threats or promises about career prospects, unwanted physical contact, visual displays of degrading sexual images, sexually suggestive conduct, or offensive remarks of a sexual nature.” - Policy commitment: “The Fund is committed under this policy to stop harassment and associated retaliatory behavior. All supervisors have a responsibility, first, to refrain from any action that could be perceived by their staff as harassment; and, second, to stop harassment in the areas under their supervision.” (p. 1.) - Protection: the policy makes clear that anyone bringing a complaint is protected against any form of reprisal (Policy on Harassment, January 1995, p. 4). ### Extension of appointment, transfer, and related procedural considerations - Applicant alleged transfer to ADM was intended to delay or avoid termination and that she agreed with Mr. Rea conversion would be based on ADM performance “untainted” by prior AFR problems. - Tribunal’s legal observations: - Administration has power to transfer staff without general requirement of staff consent. - It would be surprising if a transfer were subject to a condition that conversion would exclusively turn on performance in the receiving department. - It was not inappropriate or improper administrative procedure to inform new supervisors of prior performance difficulties; transfers normally involve explanations of reasons. - Applicant’s argument about budgetary provision for a permanent position was countered by testimony that ADM’s budget could have accommodated a permanent position. ### Performance reviews, procedural irregularities, and notice - Relevant facts from APRs: - First APR: noted work pressures affecting Applicant’s “normally good relationship with other members of the division” and need for “a calmer demeanor in pressure situations”; some colleagues found her “confrontational at times”; agreed she should adopt a “‘customer’- friendly style.” Applicant recorded she was “shocked and saddened that some of my colleagues apparently believe that there are problems on an interpersonal basis.” - Second APR: referred to Applicant’s effort to dissipate doubts about willingness or ability “to fit into the institution”; second APR evaluated her work performance highly. - Third APR (version discussed with Mr. “B” on February 19, 1995): extremely positive — called “a valued team member,” noted appropriate tact, “She soon remedies any error brought to her attention,” suggested “a course on enhancing listening skills.” - One month later the third APR, the appraisal was sharply reversed after Mr. “B.” was approached by three co-workers and met with Applicant on March 29, 1995; Mr. “B.” recorded “negative feedback” reflecting on Applicant’s interpersonal and team work skills and suggested counseling or interpersonal skills assessment; he stated he could do without Applicant’s help rather than risk the team’s esprit and ability. - Procedural due process issues identified by the Tribunal: - Adequate warning and notice are required prerequisites to defense and rebuttal. - The Guidelines require that reasons for nonconversion be given, at least where there is no extension. - The Tribunal concluded: - The first and second APRs gave Applicant notice that reservations about her relations with colleagues existed, though both APRs still evaluated work performance highly. - The abrupt reversal of the positive third APR at the March 29, 1995 session, based on coworkers’ complaints, lacked procedural fairness because: - Applicant was confronted by allegations without specific, rebuttable incidents. - She was not afforded meaningful opportunity to rebut the evidence presented by coworkers. - Mr. “B.” left it to Applicant to correct perceived behavior or deal with perceptions, suggesting no subsequent disposition to afford a structured opportunity to remedy or rebut. - When transferred to ADM, Applicant should have been informed precisely why she was not converted at end of two years and what steps she should take to correct perceived interpersonal problems; neither appears to have been done. ### Tribunal’s findings and remedies - Substantive conclusions: - The Tribunal concluded Applicant’s allegation that nonconversion was in reprisal for her harassment complaint was unfounded. - The Tribunal concluded Applicant did not meet the burden of showing an abuse of discretion by the Fund in refusing to convert her appointment. - Nevertheless, the Tribunal found procedural imperfections and irregularities in the Fund’s process, sufficient to find the Fund liable in part. - Two principal irregularities identified: 1. Upon extension and transfer to ADM, Applicant should have been told (a) precisely why she was not converted to permanent status at the end of two years and (b) what steps she needed to take to correct perceived interpersonal problems; neither was done. 2. At the dispositive session of March 29, 1995, the earlier highly positive appraisal was peremptorily overturned without presenting Applicant with specific and rebuttable incidents or affording meaningful opportunity to rebut coworker evidence. - Tribunal’s remedial authority cited: - Article XIV of the Tribunal’s Statute permits rescission of decisions and measures to correct effects; where an application is well-founded in whole or in part, Tribunal may order reasonable costs of the applicant’s legal representation be totally or partially borne by the Fund. - Tribunal has authority to reject an application challenging legality of an individual decision while finding the Fund liable in part for procedural irregularity. - Decision ordered by the Tribunal: - First: Application dismissed insofar as it requested rescission of decision not to convert Applicant’s fixed-term appointment to a permanent appointment. - Second: The Fund is liable to pay compensation to Applicant for the specified irregularities in the sum equivalent to six months of salary as her salary was established as of August 4, 1995. - Third: Applicant shall be awarded reasonable costs of her legal representation; compensable costs shall be agreed between Applicant and the Fund, and if agreement cannot be reached the Tribunal will assess costs having regard to submissions of Applicant and the Fund. --- _Source: https://www.imf.org/-/media/files/imfat/j1997-1.pdf_