## j2006-2

## Source details

**Canonical URL:** [j2006-2](https://www.imf.org/-/media/files/imfat/j2006-2.pdf)

## Other formats

- [Markdown version](/-/media/files/imfat/j2006-2.pdf.md)
- [Structured JSON version](/-/media/files/imfat/j2006-2.pdf.json)

---

### Case overview and parties' positions
- Event: Administrative Tribunal of the International Monetary Fund met on February 13, 14 and 15, 2006; Judgment adopted on June 7, 2006. Tribunal composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges.
- Applicant (Ms. “T”) contentions:
  - The decision not to convert her fixed-term appointment to a regular staff position failed to take account of all relevant evidence and was “arbitrary, capricious and an abuse of discretion.”
  - The decision was marked by procedural irregularities.
  - The Fund created an expectation of conversion and “mismanaged” her career.
  - The decision represented discrimination on the basis of race and nationality.
- Respondent (International Monetary Fund) contentions:
  - The decision was a reasonable exercise of managerial discretion, consistent with the Fund’s internal law and supported by relevant evidence.
  - Applicant failed to achieve the level of performance and potential for a Fund career required for conversion to regular staff despite regular feedback and monitoring.
  - The Fund denied procedural irregularities and discrimination.

### Procedural history before the Tribunal
- Key filings and dates:
  - April 13, 2004: Applicant filed Application with the Administrative Tribunal.
  - April 15, 2004: Application transmitted to Respondent.
  - April 19, 2004: Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4.
  - June 1, 2004: Respondent filed its Answer.
  - July 2, 2004: Applicant submitted her Reply.
  - August 5, 2004: Fund’s Rejoinder filed.
  - January 25, 2006: Applicant submitted a statement of her legal costs, requested reimbursement in the Application.
  - February 13, 2006: Fund submitted observations on Applicant’s legal costs following the President’s direction under Rule XXI, para. 3.
- Tribunal procedure:
  - The Tribunal decided not to hold oral proceedings (neither party requested them).
  - The Tribunal considered the transcript of oral hearings before the Grievance Committee and treated that record as an element of evidence.

### Requests for production of documents and Tribunal rulings
- Applicant’s document requests (numbered as presented):
  1. Documents relating to performance standards for Fund Staff Assistants from 1999 until the date of Applicant’s separation;
  2. Documents evidencing any actions by Respondent to share with Applicant any documents produced in response to point 1;
  3. Documents relating to managerial responsibilities for the professional development of subordinates including training materials for managers or supervisors, guidelines and manuals, and documents relating to the monitoring of fixed-term appointed staff;
  4. Documents evidencing any action Respondent may have taken as it relates to developing Applicant’s skills for a career with the Fund;
  5. Documents that describe differences or similarities between functions/responsibilities of Secretarial Support Group members and Staff Assistants;
  6. Documents relating to the diversity (e.g., race, nationality, gender) of [“Department 1”] from 1999 until the date of Applicant’s separation;
  7. All communications regarding Applicant among [“Department 1”] personnel including specified persons.
- Tribunal rulings on requests (decision dated December 7, 2005):
  - Requests 1, 2, 4, 5, 6, and 7 denied on the basis that the Fund stated all responsive documents had been provided during Grievance proceedings and Applicant proffered no evidence of additional Fund-held responsive documents; denial grounded in Rule XVII, para. 1.
  - Request 3 partially satisfied; Fund objected to producing guidance materials for managers relating specifically to performance issues of regular staff members on relevance grounds; Tribunal sustained the objection, concluding such documents were not relevant to the conversion decision in Ms. “T”’s case.

### Relevant internal law excerpts cited
- Rule XIV, para. 4: Registrar, upon notification of an application to the Fund, shall, unless the President decides otherwise, issue a summary of the application, without disclosing the name of the Applicant, for circulation within the Fund.
- Rule XVII (Production of Documents): Applicant’s right to request production before closure of pleadings; Tribunal may reject requests for irrelevance, undue burden, or infringement on privacy; Tribunal may examine documents in camera; Tribunal may order production subject to Article X, Section 1 of the Statute; President exercises powers when Tribunal not in session.
- Rule XXI, para. 3: The Tribunal or, when the Tribunal is not in session, the President may deal with any matter not expressly provided for in the present Rules.
- GAO No. 3, Rev. 6 (May 1, 1989) provisions:
  - 3.01 Regular Appointments: Regular appointments shall be appointments for an indefinite period. Persons holding such appointments shall be designated as regular staff members.
  - 3.02 Fixed-term Appointments: Fixed-term appointments shall be appointments for a specified period of time. Persons holding fixed-term appointments shall be designated as fixed-term staff members.
- GAO No. 3, Rev. 7 (May 1, 2003) excerpt concerning open-ended and fixed-term appointments and conversion criteria (performance, potential for a career at the Fund, and staffing requirement).

### Factual background and employment timeline
- Employment history and appointment terms:
  - Applicant first employed beginning in July 1997 as a contractual employee to serve as a Staff Assistant in the Secretarial Support Group (SSG).
  - End of September 1999: Appointed as a fixed-term staff member under GAO No. 3, Rev. 6.
  - Fixed-term appointment letter specified a two-year period commencing on October 5, 1999, with a six-month probationary period; Applicant informed she would be subject to the Guidelines for Fixed-Term Appointments (1995).
- Early assignments and supervisory feedback:
  - Initially assigned to “Division i” of “Department 1” as one of two Assistants.
  - Administrative Officer alerted the Division Chief that the Administrative Assistant had given Applicant a “not very good evaluation of the past three months.”
  - February 2000: Transferred to “Division ii.”
  - January 12, 2001 memorandum from the “Division i” Chief to the “Division ii” Chief recorded concerns (from February 2000) about Applicant’s technological skills and work methods.
- Probationary confirmation and initial appraisals:
  - April 4, 2000 email: Administrative Assistant of “Division ii” considered Applicant “a slow worker, and a slow learner,” but with a “positive” attitude and “making progress”; suggested confirming and “see how it works out.”
  - June 23, 2000: Administrative Officer reported to Human Resources Department (HRD) that “Department 1” was “... pleased with Ms. [“T”]’s performance and would like her appointment to be confirmed.” HRD informed Applicant she had successfully completed the probationary period.
- Anniversary APR (October 7, 1999 – October 7, 2000) and development plan:
  - “Division i” Chief: Applicant “... appeared to lack the knowledge of standard Fund procedures and technical know-how usually expected of assistants.”
  - Initial “Division ii” Chief: Applicant “did make an effort to improve her performance.... [n]evertheless, there remained scope for improving the speed and quality of her work.”
  - Performance Plan objectives included “improve technical skills,” “show greater initiative,” and an attached listing of eleven areas for development (technological and work management objectives, including improving Excel tables and charts, and attending to routine work without delay).
  - January 19, 2001 Anniversary APR discussion: improvement indicated potential to reach satisfactory performance but needed to be “clearly demonstrated in the coming months before a decision on conversion of her contract could be reached.”
- Applicant’s reaction and managerial follow-up:
  - March 9, 2001: Applicant signed the Anniversary APR and recorded she was “... shocked that my performance had been [rated] at a low level. It was the first time, since February 2000, that anyone told me that I was not performing at the level of an assistant of my grade.”
  - January 31, 2001: Senior Personnel Manager (SPM) reported Applicant visited her office alleging inadequate feedback and discrimination; SPM rejected discrimination allegation and offered to clarify areas for improvement.
  - February 16, 2001 Memorandum for Files: SPM reviewed the Performance Plan (including thirteen points for development) and noted ongoing feedback; SPM communicated the possibility of:
    - extending the fixed-term by six months;
    - transferring Applicant to another Division;
    - providing as a mentor an officer of the Human Resources Department with whom Applicant had a favorable prior working relationship.
  - Department Head decision to extend Applicant’s appointment by six months, stating the Department “remains committed to giving her a fair chance through a fair process” and that the extension would provide opportunity to demonstrate requisite standards for regular staff; outcome would depend on Applicant’s performance and efforts.
- Extension and monitoring arrangements (formalized):
  - Expiration of Fixed-Term Appointment form signed on March 9, 2001, formalizing extension through April 3, 2002 and referencing the Anniversary APR and areas for development:
    - Division chief, admin assistant and AO to meet with Applicant every month to provide feedback.
    - Ms. .... of SDD [Staff Development Division of HRD] to be her mentor during the next six months and to be kept informed of her progress.
    - A decision would be made at the end of September whether to convert Applicant or let her term expire.

### Transfer to “Division iii” (March 2001): duties, assessments, and mentoring
- Transfer rationale and early positive mission assessment:
  - March 2001: Applicant transferred to “Division iii” to provide a “supportive environment” (SPM testimony).
  - Deputy Chief of “Division iii” provided a favorable mission performance memorandum dated February 8, 2001 for Applicant’s November 2000 mission: “Ms. [“T”]’s overall performance on the mission was very good.... She organized her work well, pushing others also to meet deadlines... Minutes, tables, matrices, and the concluding statement were all typed/revised/distributed well. I found her original drafts of minutes to be reasonably accurate...”
  - March 8, 2001 Memorandum: Administrative Assistant of “Division iii” provided Applicant with a detailed listing of duties and responsibilities upon arrival.
- APR covering October – December 2000:
  - APR referenced positive mission performance and attached the Deputy Division Chief’s memorandum.
  - APR noted: “Ms. [“T”] needs to carry over this positive performance to her work at headquarters, which was discussed at length in her anniversary APR and, subsequently with [the SPM].”
  - APR signed on May 2, 2001 by the “Division ii” Chief and on June 4, 2001 by the “Division iii” Chief.
  - Ms. “T”’s performance was rated “3” on a rating scale of 1 - 4; rating signed by the Department Head on May 7, 2001.
- Feedback, development areas, and mentoring timeline:
  - April 24, 2001 meeting recorded areas for further development: improve familiarity with Fund procedures; greater attention to detail; frequently touch base with colleagues to clarify tasks and deadlines.
  - Mentor from Staff Development Division met with Applicant less than a week later and offered advice regarding communication skills; later mentor contacts recorded for May and July 2001 (Applicant email in May: “...I think we can do without the discussion for the moment”).
  - June 22, 2001 Division Chief advice: “Further enhance understanding and awareness of Fund procedures and practice...” and encourage communication with colleagues regarding workflow prioritization.
- Subsequent assessment and decision not to convert:
  - September 12, 2001 Deputy Division Chief assessment: performance “below average for her grade, despite clear efforts to improve... I did not have complete confidence that critical matters in her charge...would be done without very close and intense supervision....” and performance “inconsistent with sufficient confidence to either employ for the first time or convert from a contractual [i.e. fixed-term] status.”
  - September 20, 2001 meeting: Division Chief emphasized continuing “important areas” for further development including attention to detail and knowledge of Fund procedures.
  - October 4, 2001 SPM entry on Expiration of Fixed-Term Appointment form summarized: performance “mixed”; some improvement but “overall aptitude for work in an operational department remains in doubt” and “has not demonstrated a clear potential for operating at a higher level in the future.”
  - October 5, 2001: SPM notified Ms. “T” of the decision not to convert her appointment.

### Administrative review, Grievance Committee outcome, and Tribunal filing
- Administrative review:
  - Applicant sought administrative review pursuant to GAO No. 31 and filed her Grievance on July 16, 2002.
  - Grievance Committee considered complaint via oral hearings and briefs.
  - December 19, 2003: Committee issued Recommendation and Report recommending denial of Applicant’s Grievance on the ground Applicant had not shown the non-conversion decision was arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome.
  - January 13, 2004: Fund management accepted the Committee’s recommendation.
  - April 13, 2004: Applicant filed her Application with the Administrative Tribunal.

### Applicable Guidelines and standard of review
- Governing rules for pre-December 2002 appointments: Guidelines for Fixed-Term Appointments (August 1995).
  - Objective: ensure fixed-term staff gain an accurate understanding of fixed-term status and realistic prospects of conversion (Guidelines, p. 1).
  - Fund’s legal obligation “does not go beyond the initial term ...” and sets three criteria for conversion:
    - (a) performance during the fixed-term,
    - (b) potential for a career with the Fund,
    - (c) the staffing needs of the organization.
  - Supervisory obligations: provide suitable assignments, clear expectations, appropriate guidance, and timely feedback; appointee must seek assistance as needed (Guidelines, pp. 1-2).
  - Checkpoints at six, twelve and eighteen months; for Grade A1-A8 staff, first six months normally constitute a formal probationary period.
  - At 12 months: “the prospects for conversion should be discussed ... and this discussion should be reflected in the write-up.”
  - Formal decision to convert is to be taken eighteen months following appointment; a one-time extension of up to one year is permitted as an exception but “should not be taken... as any kind of indication... regarding the prospects for eventual conversion.” (Guidelines.)
- Tribunal standard of review:
  - Discretionary managerial decisions cannot be overturned unless shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.
  - Tribunal defers to management’s assessment in performance-based decisions and requires “a clearly positive assessment” to justify conversion; staffing needs are “of paramount importance.”

### Tribunal findings on procedural regularity, supervision, evidence, and discrimination
- Procedural regularity and evidence:
  - Anniversary APR covered October 7, 1999 – October 7, 2000 and included comments from both Division Chiefs who supervised Applicant during the first year.
  - Both Division Chiefs and the Administrative Officer participated with Applicant in the Anniversary APR discussions of January 19, 2001.
  - Regular APR covering October – December 2000 referenced Applicant’s positive mission performance and attached the Deputy Division Chief’s favorable appraisal.
  - Extension, transfer to “Division iii,” mentor assignment, and monthly feedback meetings were instituted to provide fuller opportunity to demonstrate suitability.
  - Tribunal found no procedural irregularity or “career mismanagement” in the non-conversion process.
  - Belated completion of the Anniversary APR (completed some 3 - 4 months after period end) was rendered immaterial by the six-month extension afforded Applicant (citing Salle, para. 46).
  - Tribunal rejected Applicant’s contention that the Fund failed to consider or fairly weigh the evidence, distinguishing this case from ones based on unsubstantiated beliefs or suppression of material facts.
- Discrimination allegations:
  - SPM investigated Applicant’s initial perception of discrimination and found no basis; Applicant did not pursue the matter further.
  - Deputy Division Chief credibly refuted Applicant’s account of an alleged offensive remark.
  - Applicant’s assertion that her departure decreased representation of her racial/nationality group in “Department 1” was found “far from probative of discrimination.”
  - Tribunal concluded Applicant did not demonstrate discrimination (referencing Ms. “Z”, Applicant v. IMF, IMFAT Judgment No. 2005-4 (December 30, 2005), para. 74).

### Tribunal legal assessment and conclusions
- Legal principles applied:
  - Conversion is discretionary but constrained by fairness: adequate opportunity to demonstrate satisfactory performance and suitability for career employment is required.
  - The concept of unsatisfactory performance in probation is broader than for a confirmed staff member (McNeill v. IBRD, WBAT Decision No. 157 (1977), para. 34).
  - “There must be a clearly positive assessment for taking the important step of committing the Fund to providing a career opportunity for the individual.”
  - Burden of proof rests with the applicant challenging non-conversion (Ms. “C”, para. 21).
- Factual findings applied to legal standard:
  - Applicant received repeated warnings and feedback about performance shortcomings and specific areas for development (technological skills, attention to detail, pace of work, familiarity with Fund procedures).
  - Transfers and the six-month extension were reasonable measures to provide additional opportunity to demonstrate suitability.
  - Applicant’s performance after extension did not meet the “clearly positive” assessment required for conversion; potential for a Fund career remained unproven to decision-makers.
  - Tribunal deferred to management’s performance assessment in accordance with its standard of review.

### Outcome and relief sought
- Applicant sought:
  - (a) reinstatement with opportunity to demonstrate suitability for conversion;
  - (b) reasonable monetary damages;
  - (c) legal costs.
- Tribunal decision:
  - The Administrative Tribunal of the International Monetary Fund unanimously decides that the Application of Ms. “T” is denied.

*Administrative Tribunal of the International Monetary Fund, Judgment (Washington, D.C., June 7, 2006).*

### Introduction

### Introduction

### Case overview and parties' positions
- The Administrative Tribunal of the International Monetary Fund met on February 13, 14 and 15, 2006, and adopted its Judgment on June 7, 2006. The Tribunal was composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges.
- Applicant (Ms. “T”) contested the Fund’s decision not to convert her fixed-term appointment to a regular staff position, alleging:
  - The decision failed to take account of all relevant evidence and was “arbitrary, capricious and an abuse of discretion.”
  - The decision was marked by procedural irregularities.
  - The Fund had created an expectation of conversion and “mismanaged” her career.
  - The decision represented discrimination on the basis of race and nationality.
- Respondent (the International Monetary Fund) maintained that:
  - The decision not to convert the fixed-term appointment was a reasonable exercise of managerial discretion, consistent with the Fund’s internal law and supported by relevant evidence.
  - Applicant, despite regular feedback and monitoring, failed to achieve the level of performance and potential for a Fund career required for conversion to regular staff.
  - The Fund denied procedural irregularities and discrimination.

### Procedural history before the Tribunal
- Key procedural dates and filings:
  - April 13, 2004: Ms. “T” filed her Application with the Administrative Tribunal.
  - April 15, 2004: Application transmitted to Respondent.
  - April 19, 2004: Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4.
  - June 1, 2004: Respondent filed its Answer.
  - July 2, 2004: Applicant submitted her Reply.
  - August 5, 2004: Fund’s Rejoinder filed.
  - January 25, 2006: Applicant submitted a statement of her legal costs, requested reimbursement in the Application.
  - February 13, 2006: Fund submitted observations on Applicant’s legal costs following the President’s direction under Rule XXI, para. 3.
- The Tribunal decided not to hold oral proceedings, which neither party had requested, concluding they were not necessary for disposition of the case. The Tribunal considered the transcript of oral hearings before the Grievance Committee and treated that record as an element of evidence.

### Requests for production of documents and Tribunal rulings
- Applicant’s document requests (numbered as presented):
  1. Any and all documents relating to performance standards for Fund Staff Assistants from 1999 until the date of Applicant’s separation;
  2. Any and all documents evidencing any actions by Respondent to share with Applicant any of the documents produced in response to point 1 above;
  3. Any and all documents relating to managerial responsibilities for the professional development of subordinates including but not limited to training materials for managers or supervisors, guidelines and manuals, and documents relating to the monitoring of fixed-term appointed staff;
  4. Any and all documents relating to or evidencing any action Respondent may have taken as it relates to developing Applicant’s skills for a career with the Fund;
  5. Any and all documents that describe the differences or similarities between the functions/responsibilities of a member of the Secretarial Support Group and the functions/responsibilities of a Staff Assistant;
  6. Any and all documents relating to the diversity (e.g., race, nationality, gender) of [“Department 1”] from 1999 until the date of Applicant’s separation; and
  7. Any and all communications regarding Applicant among [“Department 1”] personnel including but not limited to specified persons.
- Tribunal decisions on document requests (decision dated December 7, 2005):
  - Requests 1, 2, 4, 5, 6, and 7 were denied on the basis that the Fund stated all responsive documents had been provided during the Grievance proceedings and Applicant proffered no evidence of additional Fund-held responsive documents. Denial was grounded in Rule XVII, para. 1.
  - Request 3 was partially satisfied; the Fund objected to producing guidance materials for managers relating specifically to performance issues of regular staff members on relevance grounds. The Tribunal sustained the Fund’s objection, concluding such documents were not relevant to the conversion decision in Ms. “T”’s case.

### Relevant internal law excerpts cited
- Rule XIV, para. 4: Registrar, upon notification of an application to the Fund, shall, unless the President decides otherwise, issue a summary of the application, without disclosing the name of the Applicant, for circulation within the Fund.
- Rule XVII (Production of Documents) excerpts:
  - Paragraphs summarize Applicant’s right to request production before closure of pleadings; Tribunal may reject requests for irrelevance, undue burden, or infringement on privacy; Tribunal may examine documents in camera; Tribunal may order production subject to Article X, Section 1 of the Statute; President exercises powers when Tribunal not in session.
- Rule XXI, para. 3: The Tribunal or, when the Tribunal is not in session, the President may deal with any matter not expressly provided for in the present Rules.
- GAO No. 3, Rev. 6 (May 1, 1989) provisions cited regarding types of appointments:
  - 3.01 Regular Appointments: Regular appointments shall be appointments for an indefinite period. Persons holding such appointments shall be designated as regular staff members.
  - 3.02 Fixed-term Appointments: Fixed-term appointments shall be appointments for a specified period of time. Persons holding fixed-term appointments shall be designated as fixed-term staff members.
- GAO No. 3, Rev. 7 (May 1, 2003) excerpt (partial) reproduced in the source concerning open-ended and fixed-term appointments and the conversion criteria (performance, potential for a career at the Fund, and staffing requirement).

### Factual background and employment timeline
- Employment and appointment terms:
  - Applicant first employed beginning in July 1997 as a contractual employee to serve as a Staff Assistant in the Secretarial Support Group (SSG).
  - End of September 1999: Appointed as a fixed-term staff member under GAO No. 3, Rev. 6.
  - Fixed-term appointment letter specified a two-year period commencing on October 5, 1999, with a six-month probationary period; Applicant was informed she would be subject to the Guidelines for Fixed-Term Appointments (1995).
- Initial assignments and supervisory feedback:
  - Initially assigned to “Division i” of “Department 1” as one of two Assistants.
  - Administrative Officer alerted the Division Chief that the Administrative Assistant had given Applicant a “not very good evaluation of the past three months.”
  - February 2000: Transferred to “Division ii.”
  - January 12, 2001 memorandum from the “Division i” Chief to the “Division ii” Chief recorded that the “Division i” Chief had conveyed concerns in February 2000 about shortcomings in Applicant’s technological skills and work methods.
- Probationary confirmation process and early assessments:
  - At the conclusion of the six-month probationary period, the Administrative Officer queried the “Division ii” Chief regarding confirmation.
  - April 4, 2000 email from the Division Chief reported that the Administrative Assistant of “Division ii” considered Applicant “a slow worker, and a slow learner,” but with a “positive” attitude and “making progress”; suggested confirming and “see how it works out.”
  - June 23, 2000: Administrative Officer reported to Human Resources Department (HRD) that “Department 1” was “... pleased with Ms. [“T”]’s performance and would like her appointment to be confirmed.” On that date, HRD informed Applicant that she had successfully completed the probationary period.
- Anniversary Annual Performance Report (Anniversary APR) and development plan:
  - Anniversary APR covered October 7, 1999 – October 7, 2000; signed and commented on by both Division Chiefs who supervised Applicant.
  - “Division i” Chief observed Applicant “... appeared to lack the knowledge of standard Fund procedures and technical know-how usually expected of assistants.”
  - Initial “Division ii” Chief noted Applicant “did make an effort to improve her performance.... [n]evertheless, there remained scope for improving the speed and quality of her work.”
  - Performance Plan objectives (as recorded in Anniversary APR):
    - “improve technical skills” through training and division work;
    - “show greater initiative” by taking full responsibility during the Administrative Assistant’s absence in January/February;
    - an attached listing of eleven areas for development, including technological and work management objectives, e.g., the “[n]eed to improve technological skills – particularly more complex documents, boxes, Excel tables, and charts,” and to “[a]ttend to routine work without delay and without having to be reminded (e.g., filing, mail, BRS, mission leave schedule, weekly list).”
  - January 19, 2001 Anniversary APR discussion: both Division Chiefs and the Administrative Officer participated; the initial “Division ii” Chief stated that improvement indicated potential to reach satisfactory performance but that this needed to be “clearly demonstrated in the coming months before a decision on conversion of her contract could be reached.”
- Applicant’s reaction and managerial follow-up:
  - March 9, 2001: Applicant signed the Anniversary APR and recorded she was “... shocked that my performance had been [rated] at a low level. It was the first time, since February 2000, that anyone told me that I was not performing at the level of an assistant of my grade.”
  - January 31, 2001: Senior Personnel Manager (SPM) reported Applicant had visited her office alleging inadequate feedback and discrimination; SPM rejected the discrimination allegation and offered to clarify areas for improvement.
  - February 16, 2001 Memorandum for Files from the “Division ii” Administrative Assistant: follow-up meeting where SPM reviewed the Performance Plan (including thirteen points for development) and noted ongoing feedback; SPM communicated the possibility of:
    - extending the fixed-term by six months;
    - transferring Applicant to another Division;
    - providing as a mentor an officer of the Human Resources Department with whom Applicant had a favorable prior working relationship.
  - Department Head recorded above his signature on March 2, 2000 (sic in original source chronology) the decision to extend Applicant’s appointment by six months, stating the Department “remains committed to giving her a fair chance through a fair process” and that the extension would provide opportunity to demonstrate requisite standards for regular staff; outcome would depend on Applicant’s performance and efforts.
- Formal extension and monitoring arrangements:
  - Expiration of Fixed-Term Appointment form signed on March 9, 2001, formalizing extension through April 3, 2002 and referencing the Anniversary APR and areas for development:
    - Division chief, admin assistant and AO to meet with Applicant every month to provide feedback.
    - Ms. .... of SDD [Staff Development Division of HRD] to be her mentor during the next six months and to be kept informed of her progress.
    - A decision would be made at the end of September whether to convert Applicant or let her term expire.

_Administrative Tribunal of the International Monetary Fund — Judgment proceedings and factual record summarized from the case materials._

### 20.      In March 2001, Applicant transferred to “Division iii” of the Department, which

### j2006-2 - 20. In March 2001, Applicant transferred to “Division iii” of the Department

### Transfer, duties, and initial assessments
- In March 2001, Applicant transferred to “Division iii” of the Department, which the SPM testified was to provide Applicant with a “supportive environment.”
- The Deputy Chief of “Division iii” had provided a favorable mission performance review of Applicant for a mission he had headed while Applicant was assigned to “Division ii” in November 2000. In a Memorandum of February 8, 2001 he described Ms. “T”’s mission performance using the assessment: “Ms. [“T”]’s overall performance on the mission was very good.... The mission was very busy.... She organized her work well, pushing others also to meet deadlines, and everything went smoothly.... Minutes, tables, matrices, and the concluding statement were all typed/revised/distributed well. I found her original drafts of minutes to be reasonably accurate, and she was at pains to check with me, or other members of the team, when there was any problem.... ”
- Upon arrival in “Division iii,” the Administrative Assistant provided Applicant, by Memorandum of March 8, 2001, with a detailed listing of duties and responsibilities.

### Annual Performance Report (APR) and rating
- A regular APR covering October – December 2000 (the remaining months of calendar year 2000 not encompassed by the Anniversary APR) was prepared and:
  - Referenced Applicant’s positive mission performance and attached the Deputy Division Chief’s memorandum.
  - Noted: “Ms. [“T”] needs to carry over this positive performance to her work at headquarters, which was discussed at length in her anniversary APR and, subsequently with [the SPM].”
  - The APR was signed on May 2, 2001 by the “Division ii” Chief and on June 4, 2001 by the “Division iii” Chief.
  - Ms. “T”’s performance was rated “3” on a rating scale of 1 - 4, signed by the Department Head on May 7, 2001.

### Feedback, identified development areas, and mentoring
- On April 24, 2001, the “Division iii” Chief met with Applicant and the AO and recorded areas for further development, including:
  - “Improve familiarity with Fund procedures (e.g., how to handle Board documents).”
  - “Greater attention to detail (e.g., when proofreading documents and inputting data into tables).”
  - “Frequently touch base with colleagues to check that there is a clear understanding of what tasks are expected and when.”
- A mentor from the Staff Development Division met with Applicant less than a week later, reviewed elements of the discussion with the Division Chief, and offered advice regarding communication skills. Later mentor contacts are recorded for May and July 2001 (including an Applicant email in May: “...I think we can do without the discussion for the moment”).
- On June 22, 2001 the Division Chief recorded further advice to Applicant emphasizing:
  - “Further enhance understanding and awareness of Fund procedures and practice...”
  - Encourage communication with colleagues to ensure clear understanding of workflow prioritization.

### Subsequent assessments and decision not to convert
- On September 12, 2001 the Deputy Division Chief prepared an overall assessment of Applicant’s performance in “Division iii,” stating in part:
  - “My general assessment, based on the period since March is that [Ms. “T”]’s performance has been below average for her grade, despite clear efforts to improve in areas earlier identified as requiring action. .... I did not have complete confidence that critical matters in her charge...would be done without very close and intense supervision..... For someone who has been working in the Fund for quite a considerable time, familiarity with correct Fund procedures was not assured, though she did make noticeable efforts to ask and to think ahead.... [Her performance is] not low enough to warrant formal action for a regular employee but inconsistent with sufficient confidence to either employ for the first time or convert from a contractual [i.e. fixed-term] status.”
- On September 20, 2001 the Division Chief, Deputy Division Chief and Administrative Assistant met with Applicant; the Division Chief later emphasized continuing “important areas” for further development, including comprehensiveness in correcting typographical errors and knowledge of Fund procedures.
- Applicant submitted a Memorandum for Files on September 27, 2001 addressing alleged deficiencies.
- On October 4, 2001 the SPM recorded on the Expiration of Fixed-Term Appointment form:
  - “Overall performance and particular strengths/weaknesses: Ms. [“T”]’s performance has been mixed. In the APR exercise that was completed in February 2001, concerns had been raised about her lack of knowledge of standard Fund procedures, her technical know-how, and the pace of work. There has been some improvement in her performance during the subsequent six-month assignment, and she consistently demonstrated a pleasant demeanor, a dedication to day-to-day task, and responsiveness to feedback. At the same time, however, her performance in other areas was less even, including with regard to attention to detail, pace of work, and her facility to manage the work of major projects.”
  - “Potential for the longer term: Although Ms. [“T”] has demonstrated a number of strengths in important areas, her overall aptitude for work in an operational department remains in doubt and, notwithstanding an extended period of employment, Ms. [“T”] has not demonstrated a clear potential for operating at a higher level in the future.”
- On October 5, 2001 the SPM notified Ms. “T” of the decision not to convert her appointment.

### Administrative review and grievance outcome
- Applicant sought administrative review pursuant to GAO No. 31 and filed her Grievance on July 16, 2002.
- The Grievance Committee considered the complaint via oral hearings and briefs. On December 19, 2003 the Committee issued its Recommendation and Report recommending denial of Applicant’s Grievance on the ground that Applicant had not shown the non-conversion decision was arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome.
- Fund management accepted the Committee’s recommendation on January 13, 2004.
- Applicant filed her Application with the Administrative Tribunal on April 13, 2004.

### Parties’ principal contentions
- Applicant’s principal contentions included:
  - The non-conversion decision failed to consider all evidence and was arbitrary and capricious.
  - The decision was affected by procedural irregularities.
  - The Fund created an expectation of conversion and “mismanaged” Applicant’s career.
  - The decision was discriminatory on the basis of race and nationality.
  - Relief sought: (a) reinstatement with opportunity to demonstrate suitability for conversion; (b) reasonable monetary damages; (c) legal costs.
- Respondent’s principal contentions included:
  - The non-conversion decision was a reasonable exercise of managerial discretion consistent with the Guidelines for Fixed-Term Appointments.
  - The decision was based on proper assessment of performance and potential and accounted for material facts.
  - Applicant was given regular feedback, monitoring, and opportunities to improve but did not attain the level required for conversion.
  - Applicant did not establish procedural irregularities, an expectation of conversion, career mismanagement, or discrimination on race or nationality.

### Applicable Guidelines and standard of review
- For appointments commencing prior to December 2002, the Fund’s Guidelines for Fixed-Term Appointments (August 1995) govern. The Guidelines aim “... to ensure that staff on fixed-term appointments gain an accurate understanding of the meaning of their fixed-term status and a realistic view of their prospects of being converted to a ‘regular’ (indefinite) appointment upon expiration of their fixed term.” (Guidelines, p. 1.)
- The Guidelines state the Fund’s legal obligation “does not go beyond the initial term ...” and set three criteria for conversion: (a) performance during the fixed-term, (b) potential for a career with the Fund, and (c) the staffing needs of the organization.
- The Guidelines assign obligations to both supervisor and fixed-term appointee: supervisors should provide suitable assignments, clear expectations, appropriate guidance, and timely feedback; the appointee must seek assistance as needed. (Guidelines, pp. 1-2.)
- Checkpoints for performance assessment are at six, twelve and eighteen months; for Grade A1-A8 staff, the first six months normally constitute a formal probationary period. At 12 months “the prospects for conversion should be discussed ... and this discussion should be reflected in the write-up.”
- The formal decision as to conversion is to be taken eighteen months following appointment. The Guidelines permit, as an exception, a one-time extension of the appointment for up to one year if a department finds it has inadequate information to base a final decision, with the caution that such an extension “should not be taken... as any kind of indication... regarding the prospects for eventual conversion.” (Guidelines.)
- The Administrative Tribunal applies the standard that discretionary managerial decisions cannot be overturned unless shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. The Tribunal defers to management’s assessment in performance-based decisions, noting that “there must be a clearly positive assessment for taking the important step of committing the Fund to providing a career opportunity for the individual,” while also recognizing staffing needs as “of paramount importance.”

*Source: Administrative Tribunal judgment in Applicant v. International Monetary Fund (IMF).*

### 37.      Moreover, the discretion at issue in the conversion of fixed-term appointments is

### j2006-2 - 37.      Moreover, the discretion at issue in the conversion of fixed-term appointments is

### Legal standards on conversion and probation
- Conversion of a fixed-term appointment to an appointment of indefinite duration is a matter of Fund discretion but is constrained by principles of fairness, including adequate opportunity to demonstrate satisfactory performance and suitability for career employment.
- “...the concept of unsatisfactory performance as used in respect of probation is wider than the same concept used with respect to a confirmed staff member.” McNeill v. International Bank for Reconstruction and Development, WBAT Decision No. 157 (1977), para. 34.
- The Fund’s Guidelines: “There must be a clearly positive assessment for taking the important step of committing the Fund to providing a career opportunity for the individual.”
- A fixed-term appointee has no entitlement to continuation beyond the term; the burden of proof rests with the applicant in challenging non-conversion. Ms. “C”, para. 21.
- Supervisory duties per the Fund’s Guidelines include: “provide suitable assignments, clear expectations, appropriate guidance, and timely feedback.” Supervisory exposure should include tasks required of a permanent employee and opportunities to benefit from guidance and comments (Salle, para. 33).

### Factual findings on Ms. “T”’s performance, supervision, and opportunities
- Applicant’s Expiration of Fixed-Term Appointment form of October 4, 2001 recorded performance as “mixed.”
- Periodic appraisals, both formal and informal, demonstrated or should have demonstrated to Ms. “T” that the Fund retained doubts about conversion prospects.
- Extension rationale (Anniversary APR): extension “... in order to provide her with an opportunity to demonstrate that she meets the requisite standards to become a regular staff member in the department. The outcome will, however, depend on her performance and her efforts to address the areas identified for improvement.”
- Transfer and extension actions taken to provide fuller opportunity:
  - Appointment extended for six months.
  - Transfer to “Division iii” intended to place Ms. “T” in a supportive environment where she had prior good working relations.
  - Upon arrival in “Division iii,” the Administrative Assistant supplied a detailed listing of duties and allocation of responsibilities.
  - A mentor was assigned from the Staff Development Division of the Human Resources Department (extent of Applicant’s use of mentor unclear).
- Feedback and supervision evidence:
  - The SPM undertook efforts to clarify communications, including a follow-up meeting and the appointment extension and transfer.
  - Examples of ongoing feedback included instructions to follow through with e-mail requests, attend to routine tasks such as the mail in a timely manner, or to put boxes on charts in Word documents. (Memorandum of February 16, 2001.)
  - At Anniversary APR discussions of January 19, 2001, Applicant was provided an attached memorandum listing “areas for development,” including “technological” and “work management” skills.
- Concerning timeliness of appraisals:
  - Anniversary APR, designed to conclude the first 12 months, was not completed until some 3 - 4 months thereafter, in January 2001.
  - Tribunal found any deficiency was overcome by the six-month extension of Applicant’s appointment, citing Salle, para. 46: belated appraisal immaterial where applicant received a six-month extension and thus “had more opportunity to improve his performance and to demonstrate his abilities.”

### Assessment of procedural regularity and evaluation of evidence
- The Tribunal found no procedural irregularity or “career mismanagement” in the non-conversion process.
- The Fund met its obligation to take into account all relevant and significant facts for the period of review:
  - Anniversary APR covered the period October 7, 1999 – October 7, 2000 and was signed by and included comments from both Division Chiefs under whom Applicant served during the first year.
  - Both Division Chiefs and the Administrative Officer participated with Ms. “T” in the Anniversary APR discussions of January 19, 2001.
  - The regular APR covering October – December 2000 referred to Applicant’s positive performance on mission and attached the Deputy Division Chief’s favorable appraisal.
- The Tribunal rejected Applicant’s contention that the Fund failed to consider or fairly weigh the evidence, distinguishing this case from cases where non-conversion was based on “unsubstantiated beliefs” or suppression of material facts (Toivanen v. Asian Development Bank, AsDBAT Decision No. 51 (2000), para. 50).

### Discrimination allegations
- Applicant alleged discrimination on the basis of race and nationality affecting the non-conversion and later contended of a discriminatory remark by the Deputy Chief of “Division iii.”
- SPM investigated Applicant’s initial perception of discrimination and found no basis for the accusations; Applicant apparently did not pursue the matter further.
- The Deputy Division Chief credibly refuted Applicant’s account of the alleged offensive remark (Memorandum for Files of June 9, 2002; Grievance Committee testimony).
- Applicant later asserted that members of her racial and nationality group were underrepresented in “Department 1” and that her departure had a “discriminatory impact.”
- The Tribunal found the allegation that her departure decreased representation to be “far from probative of discrimination” and concluded Applicant did not demonstrate discrimination. (See Ms. “Z”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005-4 (December 30, 2005), para. 74.)

### Tribunal’s conclusions and decision
- Applicant was repeatedly warned of performance shortcomings; she was not given an “expectation” of conversion to regular staff.
- Warnings and feedback were consistent with the Guidelines for Fixed-Term Appointments.
- Transfers to “Division ii” and “Division iii,” combined with the six-month extension, remedied any alleged initial deficiency in exposure to tasks and supervisory guidance.
- The delay in the Anniversary APR did not result in a compensable claim in view of the extension afforded.
- Management engaged in a collaborative process in completing Annual Performance Reviews, taking into account views of former supervisors when Applicant transferred between Divisions.
- Ultimately, after the six-month extension, Applicant’s performance did not meet the “clearly positive” assessment required for conversion under the Fund’s Guidelines and relevant jurisprudence; Applicant’s progress remained insufficient and her potential for a Fund career was unproven to those charged with the decision.
- Decision: The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Ms. “T” is denied.

---


_Source: https://www.imf.org/-/media/files/imfat/j2006-2.pdf_