## j2014-1 - Introduction ## Source details **Canonical URL:** [j2014-1 - Introduction](https://www.imf.org/-/media/files/imfat/j2014-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2014-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2014-1.pdf.json) --- ### Procedural history and pleadings - Application filed April 24, 2012; supplemented April 25, 2012. Application transmitted to Respondent on April 27, 2012. Registrar circulated notice within the Fund on May 7, 2012. - Respondent Answer filed June 8, 2012. Applicant Reply submitted July 13, 2012 (corrected July 16, 2012). Fund’s Rejoinder filed August 16, 2012. - Additional Statement from Applicant submitted August 24, 2012; Fund Comments filed September 19, 2012. - Oral hearings before the Tribunal held March 7, 2013 and February 25, 2014. Tribunal composed of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Jan Paulsson. ### Parties, claims, and relief sought - Applicant: Ms. “JJ”, staff member of the Fund, represented herself. - Respondent: International Monetary Fund, represented by Ms. Diana Benoit and Ms. Juliet Johnson, IMF Legal Department. - Applicant challenged: - FY2009 Annual Performance Review (APR) rating of “5”. - Merit Allocation Ratio (MAR) of zero for FY2009. - Decision that, based on the FY2009 rating, she would be placed on a Performance Improvement Plan (PIP) following a two-year external assignment (2009–2011). - Applicant’s allegations included arbitrariness, erroneous facts, improper motivation, procedural violations, lack of adequate warning and opportunity to remedy, and “career mismanagement.” - Relief sought: - Rescission and amendment of FY2009 APR. - Adjustment of merit increase to at least the Department mean, retroactive to May 1, 2009. - Set aside decision to place Applicant on a PIP following external assignment. - Legal fees and costs. - Respondent’s position: - FY2009 APR reflected collective judgment of three supervisors and was reasonable. - Decision to place Applicant on a PIP was mandatory given FY2009 rating of “5”. - Zero percent merit increase followed as direct consequence of the performance rating and was not discretionary. - Challenges relating to events after September 2, 2009 are not admissible for failure to exhaust administrative review channels. ### Anonymity request and Tribunal ruling - Applicant requested anonymity under Rule XXII on November 15, 2013. - Respondent did not oppose but argued Applicant had not shown “good cause” beyond citing Mr. “HH”. - Tribunal relied on prior Judgment (Mr. “HH”) emphasizing confidentiality of performance reviews and granted anonymity pursuant to Rule XXII because key evidence related to confidential performance assessments. --- ### Factual background and prior performance history - Applicant joined the Fund in 2000 as a mid-career economist; transferred in 2006 to an area Department as desk economist for “Country A”. - Performance ratings: - FY2007: “4”. - FY2008: “4”. - FY2009: “5”. - FY2008 APR (May 1, 2007 - April 30, 2008): - Competency ratings: “FM” in eight of twelve competencies; “CE” in “building relationships”; “PM” in “analytical skills,” “technological/data management skills,” and “written communication skills.” - Narrative: generally successful but identified need to improve analytical skills and structure and clarity of writing. - July 2008 discussion: Division Chief advised Applicant to seek other opportunities to ensure departure from Department by end of next APR cycle (summer 2009). ### Developments during FY2009 (May 1, 2008 - April 30, 2009) - Performance on the program mission to “Country A” viewed as particularly problematic. - December 12, 2008 meeting: SPM informed Applicant her FY2009 performance was unsatisfactory; if confirmed she would receive a zero percent salary increase and be placed on a PIP. - SPM’s December 15, 2008 email to Applicant stated: - (i) “your performance this fiscal year has been unsatisfactory, especially in program work; (ii) if this assessment is confirmed at the time of the next APR, you will be put on a performance plan; (iii) you will be phased out from the [“Country A”] team as new desks join the team; and (iv) to avoid being put on a performance plan, you have a window of opportunity before the next APR round to apply for positions in other departments, which [Applicant’s Department] would support.” ### FY2009 APR findings and consequences - Drafting and finalization timeline: - Draft Section 5 provided July 24, 2009; Applicant invited to comment by cob next day. ASPM described draft exchange August 5, 2009. SPM signed APR on September 2, 2009. - FY2009 APR ratings and narrative: - Competency ratings: “FM” in nine of twelve competencies; “PM” in “analytical skills”; “DNM” in “specialty knowledge” and “written communication skills.” - Narrative: for May - September 2008 performance aligned with FY2008 assessment; during intensive mission work she “was not able to produce a consistent and well-reasoned macroeconomic framework and monetary projections” and was relieved of main desk responsibilities. For February - April 2009, similar problems persisted; written communication singled out as particular problem. Positive notes: “well organized”, “work ethic is good”, cooperated with successors. - Consequences recorded on FY2009 APR form: - Rating of “5” with merit increase noted as zero percent. - APR stated consequence of “5” is placement on a PIP; Department would await outcome of Applicant’s swap to another international organization and, if it did not materialize, would find a new assignment and put in place an appropriate PIP. ### Departmental memorandum (September 2, 2009) - Memorandum for Files from ASPM memorialized meeting and noted: - Fund’s mandatory requirement for a staff member to be placed on a PIP when rated a “5.” - Following external assignment, Department would “identify a new assignment for [Applicant] and, in consultation with her mission chief, develop a PIP within three months of her return.” - PIP would address: (i) written communications—structure and content; and (ii) ability to put together a coherent macroframework, including the monetary framework. - PIP would include “specific milestones, measures, and/or deliverables.” - “[I]f [Applicant]’s performance did not improve up to the required standards or the improvements were not sustained, she could be terminated within one year of her return to the department.” - External assignment “was not a substitute for a PIP” because progress could “only [be] observe[d] when she is working in the department.” ### Administrative review and Grievance Committee - Applicant requested departmental administrative review on September 23, 2009; denied by Department Director on October 19, 2009. - Applicant requested HRD review on November 13, 2009; HRD Director denied claim on December 22, 2009 and sustained PIP decision. - Applicant filed a Grievance with the Fund’s Grievance Committee on March 24, 2010; Grievance Committee recommended denial on January 4, 2012; Fund Management accepted recommendation on January 24, 2012. - Applicant filed Application with the Administrative Tribunal on April 24, 2012. --- ### Legal framework, merit matrix, and managerial guidance - APR: Guidance Notes for Managers (May 18, 2009) — key duties: - Managers must “Give regular feedback on performance throughout the year and monitor progress toward objectives. Keep notes on achievements or critical incidents that demonstrate positive and/or negative job performance.” - “Staff members who are considered poor performers, should be rated in the lowest of the five relative levels.” - PIP elements: define standards; identify actions; describe desired outcomes; provide timeframe; identify consequences; document problem and process. - GAO No. 16, Rev. 6 (February 28, 2008), Section 13 — Unsatisfactory Performance: - Section 13.02: staff entitled to at least six months’ probation before separation decision; action to place on probation taken by Department Head, in consultation with Director of Human Resources; staff informed in writing of specific areas to improve. - Section 13.04: 30 calendar days’ notice on separation for unsatisfactory performance (with possible extension in event of appeal). - 2009 Merit Matrix (June 29, 2009): - “Average Merit Increase: 5 percent” - Merit matrix values (In Percent) for Grades A1-B3 by Segment: - Outstanding – 1.30 : S1 7.40 S2 5.93 S3 4.45 - Level 2 – 1.15 : S1 6.54 S2 5.24 S3 3.93 - Level 3 – 1.00 : S1 5.69 S2 4.56 S3 3.42 - Level 4 – 0.70 : S1 3.98 S2 3.19 S3 2.39 - Level 5 – 0.00 : S1 0.00 S2 0.00 S3 0.00 - Merit Allocation Coefficient: 5.69 4.56 3.42 --- ### Standard of review and procedural safeguards - Standard for rescission of discretionary decisions: rescind if 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.” (Commentary on the Statute, p. 19) - For professional qualifications and performance ratings, deference to managerial discretion: “the determination of the adequacy of professional qualifications is a managerial, and not a judicial, responsibility.” (Commentary on the Statute, p. 19) - Tribunal will not substitute its judgment for supervisors absent “clear error or improper motive” (Ms. “BB”, para. 108). - Procedural obligations: - Supervisors must provide regular feedback and ensure APR “reflects the assessment of performance throughout the year.” - Adequate warning and notice required; staff must be informed of perceived problems and given an opportunity to rebut. ### Evidentiary findings on feedback and remedial efforts - Applicant conceded receiving oral feedback. - Specific documented feedback: - December 15, 2008 email from SPM confirming unsatisfactory performance and risk of PIP. - February 11, 2009 email from mission chief with detailed comments on an analytical piece. - March 30, 2009 red-lined draft and detailed comments from mission chief; second draft “much better.” - Tribunal findings: - Feedback was given and consistent across cycles identifying weaknesses in macro framework and writing. - Training or guidance was limited by nature of deficiencies and mission exigencies; supervisors reasonably concluded that experience-based “learn by doing” was the appropriate path and that additional training would not have resolved the deficiencies. - Encouragement to seek other departments was not improperly motivated. --- ### Tribunal analysis of APR balance, MAR, and PIP decisions - Scope of Overall Assessment: - The Overall Assessment focuses on key performance areas (macroeconomic frameworks and monetary projections) and is not meant to cover all tasks performed during the year. - Basis for the “5” rating: - Rating resulted from a roundtable discussion among supervisors; SPM testified to a unanimous supervisory view that Applicant’s performance merited an unsatisfactory rating. - HRD consultation occurred to confirm evidence of deficiencies warranted a “5.” - Tribunal concluded FY2009 APR was “reasonably supported by the evidence.” - Merit Allocation Ratio (MAR): - Applicants rated “5” are allocated MAR of zero percent under the 2009 Merit Matrix; Department had no discretion to grant a different MAR. - Tribunal found no merit to Applicant’s challenge to the MAR. - Placement on PIP: - Fund practice required placement on a PIP when staff member received the lowest rating. - Decision to place Applicant on a PIP upon return from external assignment was mandatory given the “5” and was not obviated by the external assignment. - HRD proposed establishing a PIP within three months of return if development areas remained relevant; HRD acknowledged external assignment could result in a new slate if Applicant joined another department. - Tribunal posed whether placing Applicant on a PIP in these circumstances was an abuse of discretion and, given APR was not an abuse, found no abuse in the PIP decision. --- ### Admissibility of post-September 2, 2009 challenges - Contested decisions forming Tribunal’s jurisdiction are dated September 2, 2009. - Applicant’s post-return allegations (timing of PIP implementation, alleged retaliation in August 2012, FY2012 “Not Rated”) were not administratively reviewed before filing and thus are inadmissible. - Tribunal applied Article V, Section 1 requiring exhaustion of administrative review. No exception applied because post-return claims were not given “some measure of review” prior to Application. --- ### Tribunal conclusions and decision - Key determinations: - The Fund’s practice required placement on a PIP for staff rated “5.” - Applicant received an FY2009 rating of “5.” - The decision to place Applicant on a PIP was therefore mandatory. - Applicant did not demonstrate that the FY2009 APR was arbitrary, improperly motivated, or procedurally defective. - Supervisors provided adequate and timely feedback; training limitations were reasonably justified by the nature of deficiencies and mission exigencies. - Zero percent MAR followed directly from the FY2009 “5” rating under applicable rules. - No evidence supported claims of improper motive or “career mismanagement.” - Challenges concerning events subsequent to September 2, 2009 were not exhausted administratively and are not reached on the merits. - Decision: - The Administrative Tribunal of the International Monetary Fund unanimously denies the Application of Ms. “JJ”. *Source: Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2014-1, Ms. “JJ” v. International Monetary Fund (February 25, 2014).* ### Introduction ............................................................................................. 1 ### j2014-1 - Introduction ### Procedural history and pleadings - Application filed April 24, 2012; supplemented April 25, 2012. Application transmitted to Respondent on April 27, 2012. Registrar circulated notice within the Fund on May 7, 2012. - Respondent Answer filed June 8, 2012. Applicant Reply submitted July 13, 2012 (corrected July 16, 2012). Fund’s Rejoinder filed August 16, 2012. - Additional Statement from Applicant submitted August 24, 2012 (career developments in summer 2012); Fund Comments filed September 19, 2012. - Oral hearings before the Tribunal held March 7, 2013 and February 25, 2014 by the Tribunal composed of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Jan Paulsson. ### Parties, claims, and relief sought - Applicant: Ms. “JJ”, staff member of the Fund, represented herself. - Respondent: International Monetary Fund, represented by Ms. Diana Benoit, Senior Counsel, and Ms. Juliet Johnson, Counsel, IMF Legal Department. - Applicant challenges: - FY2009 Annual Performance Review (APR) rating of “5”. - Merit Allocation Ratio (MAR) of zero for FY2009. - Decision that, based on the FY2009 rating, she would be placed on a Performance Improvement Plan (PIP) following a two-year external assignment (2009–2011). - Applicant’s allegations: contested decisions were arbitrary; based on erroneous facts while ignoring relevant facts; improperly motivated; taken in violation of applicable procedures; lack of adequate warning and opportunity to remedy performance shortcomings; Department threatened PIP to induce reassignment; improper failure to perform comparative merit assessment; “career mismanagement”; additional allegations relating to events subsequent to the contested September 2009 decisions. - Relief sought: - Rescission and amendment of FY2009 APR to reflect performance during the review period. - Adjustment of merit increase to at least the Department mean, retroactive to May 1, 2009. - Set aside decision to place Applicant on a PIP following external assignment. - Legal fees and costs. - Respondent’s position: - FY2009 APR was a reasonable exercise of managerial discretion reflecting collective judgment of three direct supervisors. - Decision to place Applicant on a PIP was mandatory given FY2009 rating of “5”. - Zero percent merit increase followed as direct consequence of the performance rating and was not discretionary. - Allegation of career mismanagement without basis. - Challenges relating to events after September 2009 are not admissible for failure to exhaust administrative review channels. ### Applicant’s request for anonymity and Tribunal decision - Inquiry sent to Applicant October 25, 2013, referencing IMFAT Judgment No. 2013-4 (Mr. “HH”), paras. 16–43, regarding Rule XXII (Anonymity). - Applicant requested anonymity on November 15, 2013: “In the light of the recent Tribunal’s Judgment on the applicant’s request for anonymity in the case Mr. “HH”, Applicant requests the benefits of Rule XXII on anonymity of the Tribunal’s Rules of Procedure.” - Respondent’s Response (November 26, 2013): did not oppose but argued Applicant had not shown “good cause” beyond citing Mr. “HH”. - Tribunal’s analysis: - Referred to Mr. “HH”, para. 17 and paras. 32, 42–43 concerning protection of professional reputation in performance-based challenges and importance of confidentiality for candor and effectiveness of performance reviews. - Quoted: “Performance reviews are a special category of human resources intervention designed, in the first place, to enhance and improve performance. Useful performance reviews are built on candor on the part of the reviewer. Confidentiality is thus important to the process for two reasons: it encourages candor by reviewers who might otherwise seek to protect a staff member from public criticism; and it protects the employee who can feel able to seek to improve his or her performance secure in the confidentiality of the process.” - Concluded anonymity was warranted because key evidence relates to assessment of performance and confidentiality cannot be preserved without concealing Applicant’s identity. - Tribunal granted Applicant’s request for anonymity pursuant to Rule XXII. ### Oral proceedings before the Tribunal - Applicant did not request oral proceedings before the Tribunal. - Tribunal received and weighed the transcript of oral hearings held by the Fund’s Grievance Committee, which included testimony from: - Applicant; - Two of Applicant’s three supervisors during the review period (one also the Department’s Senior Personnel Manager (SPM)); - Assistant to the Senior Personnel Manager (ASPM) of Applicant’s Department; - Representative of the Human Resources Department (HRD); - Two of Applicant’s colleagues. - Tribunal authorized to weigh the Grievance Committee record (citing IMFAT Judgment No. 1996-1, para. 17). - Tribunal determined oral proceedings were not useful given extensive written record and absence of request by Applicant. ### Factual background — Overview and performance history - Applicant joined the Fund in 2000 as a mid-career economist in a functional and special services department; performed successfully. - Transferred in 2006 to an area Department as desk economist for “Country A”. - Performance ratings: - FY2007: “4”. - FY2008: “4”. - FY2009: “5” (lowest possible rating). - Principal focus of Application: challenge to FY2009 APR and related decisions (zero percent MAR, placement on PIP after two-year external assignment). ### FY2008 APR (May 1, 2007 - April 30, 2008) - Overall competency ratings on FY2008 APR: - “FM” (Fully Meets) in eight of twelve key job competencies. - “CE” (Consistently Exceeds) in “building relationships.” - “PM” (Partially Meets) in “analytical skills,” “technological/data management skills,” and “written communication skills.” - Narrative findings included: - “successfully performed most of her duties as a desk officer.” - Concern: “analytical skills need further development, in particular as regards [her] constructing a comprehensive macroeconomic picture out of the mosaic of individual issues. . . . [A]dvancement in this area is still needed for her to be a more effective desk [economist].” - Writing: “[Applicant] writes generally well and contributes substantially to documents, but there is scope for improvement as regards both the structure and clarity of the presentation.” - At the FY2008 APR discussion (July 2008), Division Chief informed Applicant performance was unsatisfactory and advised she should seek other opportunities to ensure she would leave the Department by the end of the next APR cycle (summer 2009). - Applicant reports SPM reiterated advice on August 4, 2008, and again in late October 2008, encouraging return to her previous Department. ### Developments during FY2009 (May 1, 2008 - April 30, 2009) - Performance on the program mission to “Country A” viewed as particularly problematic by supervisors. - SPM testified to a performance discussion with Applicant on December 12, 2008, following the mission and reflecting the mission chief’s views. - At that meeting, SPM informed Applicant: - her performance to date for FY2009 was regarded as unsatisfactory; - if confirmed at the end of the rating period, she would receive a zero percent salary increase and would be placed on a PIP. - SPM also told Applicant she might want to look for opportunities in other departments because he believed she had potential to be effective elsewhere based on prior satisfactory work. - Subsequent meetings between SPM and Applicant “every now and then” discussed opportunities and updates on Applicant’s search; SPM thought these meetings “reinforced the message.” - SPM’s December 15, 2008 email to Applicant summarized his approach and stated: - (i) “your performance this fiscal year has been unsatisfactory, especially in program work; (ii) if this assessment is confirmed at the time of the next APR, you will be put on a performance plan; (iii) you will be phased out from the [“Country A”] team as new desks join the team; and (iv) to avoid being put on a performance plan, you have a window of opportunity before the next APR round to apply for positions in other departments, which [Applicant’s Department] would support.” *Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2014-1, Ms. “JJ” v. International Monetary Fund* ### 25. When asked in the Grievance Committee proceedings why Applicant was not placed on ### j2014-1 - 25. When asked in the Grievance Committee proceedings why Applicant was not placed on ### Department rationale for timing of a PIP - The SPM described the Department’s approach: the PIP “is required when performance is unsatisfactory and her performance had been weak but not unsatisfactory in the 2008 APR round, so that was not something that we considered at that point. It became a real consideration after the program missions, but at that point, we wanted to give her a chance to look for opportunities in other departments. . . .” (Tr. 120.) - The SPM explained: “. . . there would have been zero interest from other departments if she would have been on a Performance Improvement Plan in early 2009. And so, we wanted her to have options and were prepared to observe her in the meantime.” (Tr. 120.) - On February 3, 2009, the ASPM informed the SPM that the HRD representative had “advised us to put [Applicant] on a performance plan right away (an informal plan, to be made formal at APR time) and to give her a new assignment.” (Email from ASPM to SPM, February 3, 2009.) - The SPM and ASPM both testified that appointing a new mission chief (who became Applicant’s supervisor for the remainder of the FY2009 review period) made immediate implementation of a PIP less necessary because the new supervisor would provide “a fresh pair of eyes to observe her performance” (Tr. 121-122) and “a whole new assessment from someone new” (Tr. 311). ### Applicant’s interactions and warnings regarding PIP risk - Applicant alleges that on April 6 and 13, 2009, the SPM told her she had “only a month left to find a position outside [her Department] to avoid being placed on a PIP,” and that she would receive a “5” on her upcoming APR if she did not find a position outside the department before the end of May. - At a July 2, 2009 meeting with Applicant’s mission chief, SPM and ASPM, Applicant reports the SPM confirmed the “5” rating as final and said it “would necessitate placing her on a PIP if her swap arrangement to the [other organization] did not go through.” ### Drafting, finalization, and signing of the FY2009 APR - On August 5, 2009, the ASPM described Section 5 of the APR as a draft provided July 24 and invited Applicant to submit comments by cob tomorrow because the SPM’s last day in the office was that Friday. (Email exchange of July 24, August 4-6, 2009.) - Applicant requested more time on August 5 and proposed meeting the SPM on August 6 to lay down concerns; the SPM recommended finalizing in early September due to leave. - On September 1, 2009, upon the SPM’s return, the SPM informed Applicant the APR had been final for weeks, signed it on the spot, and advised Applicant she would be placed on a PIP following her return from an external assignment. ### FY2009 APR findings and ratings - On the FY2009 APR, Applicant was rated: - “FM” (Fully Meets) in nine of twelve key job competencies; - “PM” (Partially Meets) in “analytical skills”; - “DNM” (Does Not Meet) in “specialty knowledge” and “written communication skills.” - The narrative assessment concluded: - For May - September 2008, performance was “in line with the assessment in her 2008 APR” but during intensive mission work she “was not able to produce a consistent and well-reasoned macroeconomic framework and monetary projections, and other members of the team often had to take over these tasks.” - Applicant “did not meet the performance standards to be the main desk economist” and was relieved of that responsibility. - For February - April 2009, under the new mission chief, Applicant “demonstrated some of the same problems,” specifically “difficulty in managing more complex tasks involving analysis of the monetary numbers and drafting,” and that “[w]ritten communication is a particular problem.” - The APR referenced persistent problems from the 2008 APR in “structure and clarity” of writing and stated these issues, alongside macroframework problems, “will be important” to address for effectiveness as a desk economist. - Positive elements: Applicant was “well organized” and her “work ethic is good,” including cooperating with successor desk economists and contributing to team discussions. - The APR narrative tracked closely a Memorandum for Files signed by Applicant’s initial mission chief on April 3, 2009. (Footnote.) ### Consequences recorded on the FY2009 APR form - The FY2009 APR summary noted the “5” rating and plans for a PIP, stating: - Consequence of being rated a “5” is placement on a performance improvement plan. - Given Applicant’s intent to pursue a swap arrangement with [another international organization], the Department would await the outcome of the swap and, if it did not materialize, would find her a new assignment in the department and put in place an appropriate PIP at that time. - Applicant’s FY2009 APR was signed by the SPM on September 2, 2009. - The merit increase was noted as zero percent. - Applicant registered written disagreement with the assessment and indicated she would seek administrative review. ### Departmental memorandum on post-swap PIP and potential termination - A Memorandum for Files from the ASPM (September 2, 2009) memorialized the September 1 meeting and noted: - The Fund’s mandatory requirement for a staff member to be placed on a PIP when rated a “5.” - Following the external assignment, the Department would “identify a new assignment for [Applicant] and, in consultation with her mission chief, develop a PIP within three months of her return.” - The PIP would address: (i) written communications—both structure and content; and (ii) ability to put together a coherent macroframework, including the monetary framework. - The PIP would include “specific milestones, measures, and/or deliverables.” - “[I]f [Applicant]’s performance did not improve up to the required standards or the improvements were not sustained, she could be terminated within one year of her return to the department.” - The external assignment “was not a substitute for a PIP” because progress could “only [be] observe[d] when she is working in the department.” ### Decision process and consultations leading to the “5” rating - Respondent stated the numerical rating resulted from a “roundtable discussion” comparing Applicant with peers in her Department. (Tr. 346.) - The SPM testified that there was a unanimous supervisory view that Applicant’s performance merited an unsatisfactory rating and that “there were no dissenting views.” (Tr. 85.) - The HRD representative testified the Department consulted HRD “in terms of [was] there enough evidence of performance deficiencies and that it really called for a 5.” (Tr. 347.) The HRD representative stated such consultation was typical before assigning a “5”. ### Applicant’s two-year external assignment and HRD position - Applicant secured an offer in June 2009 for a two-year external assignment to another international organization beginning later that year. - HRD proposed: “[The Department] discusses the specific development areas identified in the APR and communicates that on her return from the SWAP assignment if these development areas are still relevant in the context of the new assignment in [the Department], a PIP will be established within 3 months.” (Email from HRD representative to ASPM, August 31, 2009.) - Applicant’s two-year external assignment spanned “late 2009 to late 2011.” - The Tribunal excluded Applicant’s subsequent-return challenges from these proceedings (paras. 124-130); Respondent declined to provide its version of those post-return facts. (Footnote.) ### Administrative review and grievance proceedings - On September 23, 2009, Applicant requested administrative review by her Department Director of the “. . . arbitrary decisions to give me a 5 rating and 0 percent merit increase, include negative comments on my APR for FY2009 including the perceived need for a performance improvement plan (PIP), and to require me to participate on a PIP upon my return from a 2-year swap to the [other international organization], regardless of my performance there.” (Memorandum from Applicant to Department Director, September 23, 2009.) - On October 19, 2009, the Department Director denied the request, concluding Applicant’s “assessment and rating were fair and well balanced,” and declined to amend the APR, adjust the merit increase, or reverse the PIP decision. (Memorandum from Department Director to Applicant, October 19, 2009.) - On November 13, 2009, Applicant requested administrative review by the HRD Director. (Memorandum from Applicant to HRD Director.) - On December 22, 2009, the HRD Director denied Applicant’s claims, concluding the contested assessment “reflected a thorough and fair process” and that the “decision to assign you a ‘5’ rating for 2009, given the level of the overall performance as assessed by your supervisors, was appropriate.” (Memorandum from HRD Director to Applicant, December 22, 2009.) - The HRD Director sustained the decision that Applicant would be placed on a PIP upon return, noting that HRD supported the secondment “in the belief that it will help to develop your skills and enhance your marketability” but that the secondment “does not, however, obviate the need for a PIP, should you return to the Fund.” (Id.) ### Grievance Committee and Tribunal filings - On March 24, 2010, Applicant filed a Grievance with the Fund’s Grievance Committee. - On January 4, 2012, the Grievance Committee recommended that the Grievance be denied. (Grievance Committee Recommendation and Report, January 4, 2012.) - On January 24, 2012, Fund Management accepted the Grievance Committee’s recommendation. (Letter from Deputy Managing Director to Applicant, January 23, 2012, and cover email of January 24, 2012.) - On April 24, 2012, Applicant filed her Application with the Administrative Tribunal. ### Parties’ principal contentions (summarized) - Applicant argued: - The FY2009 APR was arbitrary, based on erroneous facts, biased, improperly motivated, and procedurally defective. - She lacked adequate or timely warning and opportunity to correct shortcomings. - The Department’s objective was to “force Applicant to leave the department.” - The FY2009 MAR (zero percent merit increase) was arbitrary; failure to conduct meaningful peer-to-peer review. - The decision to place Applicant on a PIP upon return was arbitrary and improperly motivated; no written Fund rule requires a PIP for a “5.” - The Department should have provided support to find a suitable position; alleged “career mismanagement.” - Delay in implementing the PIP after return created additional uncertainty. - Alleged retaliation for filing the Tribunal Application relating to events in 2012 and rating as “Not Rated” for the 2012 APR. - Remedies sought: rescission and amendment of FY2009 APR; adjustment of merit increase to at least the Department mean retroactive to May 1, 2009; setting aside the PIP decision; legal fees and costs. - Respondent argued: - Applicant failed to establish the managers’ FY2009 assessment was arbitrary; assessment was fact-based and procedurally compliant. - The FY2009 APR reflected assessments from three managers over the review period; the “5” rating is supported by evidence. - Applicant received regular performance feedback; procedures were followed. - No support that the assessment was improperly motivated. - Applicant’s zero percent merit increase was a necessary consequence of the FY2009 APR and governing rules. *Source: Administrative Tribunal case summary (content unit j2014-1).* ### 6. The decision to place Applicant on a PIP was mandatory, given her FY2009 ### 6. The decision to place Applicant on a PIP was mandatory, given her FY2009 performance rating of “5” and the Fund’s practice of requiring a PIP when a staff member receives the lowest of the possible performance ratings. Applicant’s external assignment did not eliminate the need for a PIP upon her return to the Fund. ### Key findings and determinations - The Fund’s practice required placement on a Performance Improvement Plan (PIP) when a staff member received the lowest performance rating. - Applicant received an FY2009 performance rating of “5”. - The decision to place Applicant on a PIP was therefore mandatory given the rating of “5”. - Applicant’s external assignment did not eliminate the need for a PIP upon her return to the Fund. - There is no evidence of “mismanagement” of Applicant’s career by the Fund. It is the responsibility of individual staff members to manage their careers. - The Fund made good faith efforts to identify suitable positions for Applicant. - Allegations relating to events after September 2, 2009 are not properly before the Tribunal because Applicant did not exhaust administrative review in respect of them. ### Procedural and admissibility point - Events occurring after September 2, 2009—the date of the decisions subject to Applicant’s challenge—are not admissible before the Tribunal without exhaustion of administrative review. ### Finalized issues for Tribunal consideration - The Application presented the following issues: - (i) What is the standard of review that governs in challenges to performance assessments? - (ii) Did the Fund abuse its discretion in assessing Applicant’s performance in the FY2009 APR? - (iii) Did the Fund abuse its discretion in assigning Applicant a zero percent merit increase for FY2009? - (iv) Did the Fund abuse its discretion in deciding, based on the results of Applicant’s FY2009 APR, that she would be placed on a PIP following her return from a two-year external assignment? - (v) Did the Fund “mismanage” Applicant’s career? - (vi) Are the challenges raised by Applicant concerning events subsequent to the contested decisions of September 2009 admissible before the Tribunal? If so, how shall those challenges be decided? --- ### Relevant Provisions of the Fund’s Internal Law ### APR: Guidance Notes for Managers (May 18, 2009) — governing performance assessment - Managing the Performance Review Process: - Managers must “Give regular feedback on performance throughout the year and monitor progress toward objectives. Keep notes on achievements or critical incidents that demonstrate positive and/or negative job performance.” - “The annual review should serve as the culmination of regular feedback during the year … This avoids unpleasant surprises … and allows them to make performance corrections during the year.” - Merit Information: - “Departments will place each staff member in one of five relative levels, based on the distribution set out below.” - “Beginning FY 2009, Merit Allocation Ratios (MARs) will be standardized across the Fund and calculated centrally by HRD, based on a relative ranking system with five levels.” - Managing Performance: - “Performance management is an on-going process which is summarized every year in the APR. Hence the APR needs to reflect the assessment of performance throughout the year.” - Managing Poor Performance: - “Staff members who are considered poor performers, should be rated in the lowest of the five relative levels.” - Managers are expected to: - “(i) reiterate to the staff member performance areas that still need improvement … and (ii) develop a plan to help the staff member address the deficiencies.” - A PIP should: - define the performance standards for the job, - identify the specific actions that should be taken to address the deficiencies, - describe the desired outcome/results of the actions, - provide a timeframe for progress to be achieved, and - identify the consequence/s of not improving the performance. - Documentation expectations: “It is very important that you document the problem and the process, including any discussion that you hold with the staff member.” - Probationary Action: - “If, in your judgment, the deficiency is significant to the point where suitability for employment in the Fund is in question, then the staff member should be placed on probation (in accordance with GAO No. 16, Rev. 5, Sec. 14).” - “A staff member on probation will be monitored closely on his or her progress on a PIP for a defined period of time (minimum of six months), following which termination is in order if performance continues to be unsatisfactory.” - Supervisors are to consult with Senior Personnel Manager (SPM) and Assistant to the Senior Personnel Manager (ASPM) prior to placing staff on probation. - When probation is used, the PIP should contain: - a clear and detailed identification of areas that need improvement, - what needs to be done to develop, and expected results, - a time frame for completion of the probation (“GAO No. 16, Rev. 5, Sec. 14.02 provides a minimum of six months”), - methods to measure improvement, including performance monitoring and feedback schedules, - consequences, if performance continues to be unsatisfactory. - Once the PIP is complete, managers are expected to: - hold a meeting with ASPM present to inform the staff member that he/she is placed on probation, discuss the PIP, and provide a copy of the PIP; - document in a memorandum for file the discussion and any issues that arose; and - monitor the staff member’s development as specified in the PIP, and document assessment of progress. ### GAO No. 16, Rev. 6 (February 28, 2008), Section 13 — Unsatisfactory Performance - Section 13.01 General: “A staff member may be separated for unsatisfactory service.” - Section 13.02 Entitlement to Probationary Period: - “A staff member whose performance is considered unsatisfactory shall be entitled to a period of at least six months probation before a decision to separate him is taken.” - “Action to place the staff member on probation shall be taken by his Department Head, in consultation with the Director of Human Resources.” - “The staff member shall be informed in writing of the specific areas in which he is required to improve.” - “If, at the end of the probationary period, the Department Head determines, in consultation with the Director of Human Resources, that the staff member has continued to perform unsatisfactorily, his employment shall be terminated.” - Section 13.03 Exceptions: “The provisions of Section 13.02 shall not apply to cases where the staff member … has been placed on probation for unsatisfactory service in the previous five years.” - Section 13.04 Notice: “A staff member separated because of unsatisfactory performance shall be entitled to 30 calendar days’ notice.” - “However, in the event of an appeal against the decision to terminate his employment, the Director of Human Resources may, at his discretion, extend the period of notice until a final decision has been made.” - Section 13.05 Resettlement Benefits: “A staff member who is separated for unsatisfactory performance shall be eligible for resettlement benefits. However, the minimum period of service required as specified in General Administrative Order No. 8 (Relocation Benefits) shall not apply in such a case.” ### 2009 Merit Matrix (June 29, 2009) — merit pay determination - “Average Merit Increase: 5 percent” - Merit matrix values (In Percent) for Grades A1-B3 by Segment: - Ranking and MAR Level: - Outstanding – 1.30 : S1 7.40 S2 5.93 S3 4.45 - Level 2 – 1.15 : S1 6.54 S2 5.24 S3 3.93 - Level 3 – 1.00 : S1 5.69 S2 4.56 S3 3.42 - Level 4 – 0.70 : S1 3.98 S2 3.19 S3 2.39 - Level 5 – 0.00 : S1 0.00 S2 0.00 S3 0.00 - Merit Allocation Coefficient: 5.69 4.56 3.42 - Note in matrix: “Rounded to 2 decimals” --- ### Consideration of the Issues — Standard of Review and Procedural Safeguards ### Standard of review for discretionary decisions, including performance assessments - Discretionary decisions are subject to rescission if 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.” (Commentary on the Statute, p. 19) - For assessments of professional qualifications (including performance ratings and performance-based non-conversion decisions), deference to managerial discretion is emphasized: “the determination of the adequacy of professional qualifications is a managerial, and not a judicial, responsibility.” (Commentary on the Statute, p. 19) - In reviewing challenges to performance ratings and merit increase decisions: “[i]n the absence of clear error or improper motive in the evaluation of performance, the Tribunal will not substitute its judgment for that of supervisors charged with that task.” (Ms. “BB”, para. 108) ### Procedural obligations in performance assessment - Supervisors have affirmative obligations under the APR Guidance Notes to: - “Give regular feedback on performance throughout the year and monitor progress toward objectives.” - Ensure the APR “reflects the assessment of performance throughout the year.” - Provide feedback on poor performance “at anytime during the year” and avoid delay in addressing deficiencies. - Adequate warning and notice are required as elements of due process: the Fund must explain perceived performance problems, suggest steps to correct them, and give staff a meaningful opportunity to rebut allegations of performance problems. (Ms. “C”, paras. 41–42) - The World Bank Administrative Tribunal principles cited include: - Performance evaluation “should deal with all relevant and significant facts, and should balance positive and negative factors in a manner which is fair to the person concerned.” (Lysy, Decision No. 211 (1999), para. 68) - “Performance assessment … must take into account all relevant and significant facts that existed for that period of review … in order to ensure a reasonable basis for the … ratings and comments.” (CD v. IBRD, Decision No. 483 (2013), para. 19) - “Lapses in performance should be identified when they occur and should be addressed expressly and promptly.” (O, Decision No. 337 (2005), para. 54) - “Discussion of performance does not replace the need for ongoing feedback throughout the year … the staff member ‘should be able to anticipate the nature of this year-end discussion and resultant ratings.’” (Prasad, Decision No. 338 [2005], para. 25, quoted in BG, Decision No. 434 (2010), para. 40) - “A basic guarantee of due process is ‘that the staff member affected be adequately informed with all possible anticipation of any problems concerning his career prospects, skills or other relevant aspects of his work’.” (Garcia-Mujica, Decision No. 192 [1998], para. 19) *Source: International Monetary Fund Administrative Tribunal (j2014-1).* ### 56. In its recent Judgment in CD, para. 20, the WBAT considered whether the performance ### j2014-1 - 56. In its recent Judgment in CD, para. 20, the WBAT considered whether the performance ### Feedback on performance shortcomings - Tribunal reference: WBAT considered whether the performance assessment included “specific and adequate descriptive statements”, took into account all relevant and significant facts to ensure an “observable and reasonable basis”, and “included feedback which supported” the rating. - Applicant’s allegations: - Received “no feedback on her performance during the first five months of the FY2009 review period.” - No feedback from the initial mission chief, the SPM, or in relation to the finalization mission. - Respondent’s position: - “Applicant received regular and consistent feedback from multiple supervisors regarding her performance deficiencies.” - Evidentiary findings: - Applicant conceded receiving oral feedback (Tr. 479, 499-501). - December 2008: performance discussion with the SPM; meeting confirmed by email from SPM to Applicant on December 15, 2008 (paras. 23–24). - February 11, 2009: mission chief provided detailed feedback on an analytical piece; comments included: “It’s important to think about the context of questions in answering them.” “It’s important to think through the logic.” “Your language is unclear in several places.” He concluded: “[t]here is no need to do further work on this note, but these are all things I’d like you to bear in mind in future assignments.” (Email from mission chief to Applicant, February 11, 2009.) (Tr. 191.) - March 30, 2009: mission chief red-lined a poor draft, sent detailed comments and expectations for the next draft; second draft was “much better.” (Email from mission chief to Applicant, March 30, 2009.) (Tr. 193–195.) - Mission chief identified persistent problems: “faults of analysis, including, of the monetary statistics and also of the general economic picture, and, also, faults of writing.” He also found aspects “ungrammatical” and “just weren’t clear.” (Tr. 196–197.) - Applicant’s view of feedback: - Characterized supervisor feedback as having a “hidden agenda” and aimed at “scoring points” rather than correcting her (Tr. 499, 501). - Tribunal conclusion: - Feedback was given and was consistent across three APR cycles in identifying weaknesses. - Timing of feedback is managerial judgment so long as feedback is not withheld and is timely. ### Guidance and training to remedy shortcomings - Relevant guidance: “APR: Guidance Notes for Managers” expects managers to “[g]ive regular feedback on performance throughout the year and monitor progress toward objectives,” and that “[i]f the deficiency is skill-related, training would be an appropriate remedy . . . .” - Applicant’s claims: - “Received no informal guidance and none of the training and support to help her reach the developmental objectives . . . expressly identified in the 2008 APR” and that “coaching, mentoring and training” was never offered. - Evidence and testimony: - Applicant rejected that written English was a language problem and declined language training; she had participated in a writing course in 2007 (Tr. 497–498; Tr. 208). - Mission chief: improving analytical skills is “a really difficult one” to address by training because it “is one that you learn by doing” and Applicant “didn’t seem to have picked up what she needed to do to handle the macroeconomic framework or the monetary spreadsheets and the monetary analysis.” (Tr. 208–209.) - Colleague: for a mid-career desk economist, “it [was] not clear what training was required. You would expect a person who has been a desk for two years to know their stuff.” (Tr. 263, 266.) - SPM: expectation that a mid-career economist would “learn by doing and learn from others, and seek guidance herself, because there was consistent feedback that analytical skills and written communication needed improvement.” (Tr. 181.) - Second mission chief attempted guidance but cited program exigencies limiting time for remedial supervision: “I would like to have had more time to work with [Applicant] . . . But the exigencies of the program work meant that doing that, I would have had to choose to do less on the management of the program or the management of other people on the team and so I wasn’t able to do that.” (Tr. 243.) - Tribunal conclusions: - Supervisors considered that further guidance or training would not have resolved Applicant’s shortcomings given her experience level and the nature of the deficiencies. - Encouraging Applicant to seek opportunities in other Fund departments was not improperly motivated; it was an attempt to find a better match for her skills and protect her career. - The Fund did not fail to provide appropriate guidance or training under the circumstances, and the mission’s exigent workload reasonably limited remedial efforts. ### Balance and basis of the FY2009 APR assessment - Applicant’s criticisms: - FY2009 APR “. . . fail[ed] to mention and fairly weigh any of Applicant’s other assignments during the 2009 APR review cycle which she performed without criticism and therefore presumably with success.” - Section 4 of the APR allegedly based on erroneous facts and disregarded Fund business practices (e.g., recruiting one-off additional economists during an Article IV mission). - Work on the fiscal file was not discussed in the APR; the mission was “chaotic” and Applicant lacked “specific assignment or practical guidance.” - Contest that tasks were taken over by others; argues addition of two economists to the team was “normal process” and not related to her performance. - Respondent’s responses: - Sections of the APR completed by managers focus on “overall assessment,” critical competencies, and development objectives, not a recitation of every task. - Work on the fiscal file was not sufficiently important to warrant APR discussion; Applicant included it in her self-assessment but primary responsibilities were macroeconomic framework and monetary projections (Grievance Committee testimony, Tr. 452). - Temporary assignment to the fiscal file reflected availability of another staff member and does not demonstrate confidence in Applicant’s numerical abilities. - Tribunal considerations: - APRs serve as important feedback; previous APRs showed partially met standards and low relative rankings that signaled shortcomings. - The record supports managers’ assessment that deficiencies in core competencies outweighed isolated or temporary assignments. - The Tribunal found that the FY2009 APR provided a basis rooted in observable evidence of repeated weaknesses and managerial judgments given mission exigencies. *Tribunal findings and analysis summarized from the FY2009 APR challenge proceedings.* ### 87. The Overall Assessment is not meant to cover all tasks performed during the year. ### j2014-1 - 87. The Overall Assessment is not meant to cover all tasks performed during the year. ### Scope and purpose of the Overall Assessment - The Overall Assessment focuses on key areas of performance in a program country—macroeconomic frameworks and monetary projections—which Applicant had identified in her Key Achievements and Objectives and which management considered key requirements to be an effective desk economist. - The Overall Assessment is not meant to cover all tasks performed during the year. - The precise weighting given to each area of work is primarily a managerial responsibility and the Tribunal will respect relevant managers’ decisions so long as the assessment is fair and balanced. ### Tribunal findings on Applicant’s FY2009 APR substance - The Tribunal found Applicant did not establish by reference to her work on the fiscal file that managers’ assessment of her overall performance for FY2009 was to be faulted. - The FY2009 APR recognized positive attributes: Applicant was “well organized” and had a “good work ethic” and “cooperated well with her successors and has continued to contribute to team discussions and to work hard on assignments.” - Applicant asserted the APR failed to account for (a) work pressures during the year and (b) her relative level of experience, noting she “had no prior program work or mission experience” and had been “the only Team member who had never done program work before.” - The Tribunal observed that Applicant arrived at the Fund at “mid-career” (i.e., was a seasoned economist) and concluded she “did not respond to those demands in the manner that would be expected of a staff member with her level of experience.” - The Tribunal concluded the FY2009 APR was “neither unfair nor unbalanced” and identified consistent areas for improvement—macroeconomic analysis and written communication—that matched previous APRs and the key performance areas in a program country. ### Procedural aspects of the APR and related management guidance - “APR: Guidance Notes for Managers” provides that departments place each staff member in one of five relative levels, with placement reflecting overall performance, contribution, competency ratings, and factors such as workload, output, complexity of assignments, impact of work, and other circumstances (e.g., handling a higher level position for an extended period). - The Tribunal found these circumstances were adequately considered in Applicant’s assessment. - The Tribunal accepted that assessment of Applicant’s performance even before crisis demands was consistent with weaknesses later deemed dispositive by field supervisors. ### Basis for the “5” rating and departmental process - The FY2009 rating of “5” was the lowest of five relative levels. - “APR: Guidance Notes for Managers” states that “[s]taff members who are considered poor performers, should be rated in the lowest of the five relative levels.” - Respondent asserted the numerical rating resulted from a “roundtable discussion” comparing Applicant’s performance with peers. - The SPM testified there was a “unanimous view among supervisor[s] that her performance merited an unsatisfactory rating” and that there were “no dissenting views.” (Tr. 85.) - The HRD representative testified the Department consulted with HRD to confirm whether there was enough evidence of performance deficiencies to call for a “5.” (Tr. 347.) - The Tribunal concluded Applicant’s FY2009 APR was “reasonably supported by the evidence.” ### Allegations of improper motivation - Applicant contended the Department’s main objective was “to force Applicant to leave the department,” asserting the SPM told her on December 12, 2008 and then on April 6 and April 13, 2009 that the only way to avoid a “5” rating was to leave the Department before the end of the APR cycle. - Respondent contended the SPM’s motivation was to offer Applicant a better career option rather than face possible termination and noted prior good performance in another Fund department. - The Tribunal found the Department had sought to avoid giving Applicant a “5” to prevent career damage and that the conclusion on poor performance was reached by three supervisors, rebutting the improper-motivation allegation. - The Tribunal concluded the APR was not improperly motivated. ### Procedural fairness and opportunities to respond - Applicant argued procedural flaws included (a) not receiving her APR until September, (b) the initial mission chief’s internal memorandum being withheld until later, and (c) finalization of the APR before she could respond. - Respondent stated appraisals are commonly written after the review period and that Applicant had been informed months in advance that she would likely receive a “5.” - The Fund’s practice is not to disclose individual managers’ assessments used as inputs to the Overall Assessment; the memorandum was disclosed later as a goodwill gesture. - The draft Section 5 of the APR was shared with Applicant as a courtesy; Applicant was given three weeks to comment but did not do so within that period. - Specific timeline and communications preserved in the record: - SPM email to Applicant dated August 6, 2009: suggested Applicant take time to review draft Section 5 and finalize in early September. - Applicant attempted to convey comments on September 1, 2009 but was told the APR was final. - Applicant added comments under Section 7 on September 4, 2009: “This APR contains significant erroneous facts. It does not take into account essential elements. Moreover, the APR process proved prejudiced and hindered a fair and candid assessment. For these reasons, I request an administrative review.” - The Tribunal concluded the APR process was not flawed: it was not unreasonably delayed, no substantive information was withheld, Applicant met with relevant supervisors, and she had the ability to add remarks under Section 7. ### Merit Allocation Ratio (MAR) decision - Applicant challenged the zero percent merit increase for FY2009 as arbitrary, procedurally defective, and improperly motivated. - Respondent argued the zero percent MAR was a necessary consequence of the “5” rating and pointed to the 2009 Merit Matrix showing staff rated “5” were to be allocated a MAR of zero. Applicant did not challenge that rule. - Applicant’s Application framed the decision as the “[d]ecision to assign Applicant a performance rating of “5” for the 2009 Annual Performance Review (APR) period, with a corresponding Merit Allocation Ratio (MAR) of zero.” (Emphasis added.) - The Tribunal found the institutional directive left departments no discretion to grant other than a zero percent increase to staff rated “5” and therefore found no merit to Applicant’s challenge to the MAR. ### Placement on a Performance Improvement Plan (PIP) - Applicant challenged the September 2009 decision that, based on her FY2009 APR, she would be placed on a PIP upon return from a two-year external assignment, contending: - The PIP decision was based on an arbitrary APR. - There is no written Fund rule mandating a PIP in all cases of a “5” rating. - Her external assignment should have obviated any such rule. - Respondent maintained it was established practice that staff rated “5” would be placed on a PIP and that the two-year external assignment did not negate the requirement to place her on a PIP upon return. - Memorandum for Files dated September 2, 2009 (copied to Applicant) memorialized a meeting and stated: - The “Fund’s mandatory requirement for a staff member to be placed on a performance improvement plan (PIP) when they are rated a ‘5’.” - Following the external assignment, the Department would “identify a new assignment for [Applicant] and, in consultation with her mission chief, develop a PIP within three months of her return.” - The PIP would address two main areas identified in the 2009 APR: (i) written communications—both the structure and the content and (ii) ability to put together a coherent macroframework, including the monetary framework. - The PIP would include “specific milestones, measures, and/or deliverables.” - If performance did not improve or improvements were not sustained, she could be terminated “within one year of her return to the department.” - The SPM indicated the external assignment was “not a substitute for a PIP” because “we can only observe her progress when she is working in the department.” (Memorandum to Files from ASPM, September 2, 2009.) - The Fund produced no documentation of a written policy mandating a PIP for all staff rated “5”; testimony suggested it was an established practice. - The Tribunal posed the remaining question whether placing Applicant on a PIP in these circumstances was an abuse of discretion, given the Tribunal’s prior conclusion that the APR itself was not an abuse of discretion. *Source: The Tribunal (International Monetary Fund).* ### 113. In the instant case, the record shows that Applicant repeatedly was warned that she was at ### Applicant’s performance rating, PIP decision, and external assignment ### Key findings on the PIP decision and external assignment - Applicant was repeatedly warned that she was at risk of receiving a “5” rating and being placed on a PIP. - Decision makers expressed uncertainty as to how the requirement of a PIP would apply when a staff member was to embark on an external assignment just after a “5” rating became final (HRD Email exchanges of September 2, 2009). - HRD proposed: “[The Department] discusses the specific development areas identified in the APR and communicates that on her return from the SWAP assignment if these development areas are still relevant in the context of the new assignment in [the Department], a PIP will be established within 3 months.” (Email from HRD representative to ASPM, August 31, 2009.) - Respondent’s position: placing Applicant on a PIP “if and when she returned to [her Department] following her swap assignment was reasonable given the undisputed differences between Applicant’s proposed assignment at the [other international organization] and the work of [her Department].” - Applicant’s mission chief testified he did not have the impression the external assignment “would really prepare [Applicant] for resuming a job as a desk economist.” (Tr. 202.) - HRD representative testified: “. . . if [Applicant] was to come back and go to, let’s say, another department, it’s a new slate. So, yes, she could get a job in a different department and not have a PIP.” (Tr. 365.) - Tribunal finding: no merit to the claim that the decision to place Applicant on a PIP on her return from external assignment was arbitrary or unreasonable; the decision related to deficiencies in competencies required for a desk economist in the Department to which she was expected to return. ### Allegation that PIP was used to induce reassignment ### Tribunal findings on motive - Applicant alleged managers threatened a PIP not as a genuine improvement effort but to induce reassignment outside the Department. - Tribunal found no record basis to support a claim of improper motive (see paras. 95-97). - Evidence indicated managers genuinely perceived Applicant’s performance and skills as better suited to another Fund department, considering her earlier successful performance in a functional and special services department. - Tribunal conclusion: no support for the allegation that the PIP threat was used improperly to force Applicant out of the Department. ### Claim of career mismanagement ### Legal and factual findings - Applicant asserted that the contested administrative decisions evidence career mismanagement, citing failures to halt downgrading of performance and to take prompt remedial actions. - Respondent asserted staff members bear responsibility to manage their careers and that Applicant’s managers attempted to facilitate placements and supported the external assignment she found. - Tribunal precedent cited: prior denials of “career mismanagement” claims (e.g., IMFAT Judgment Nos. 2007-2, 2006-3, 2006-2). - Tribunal noted uncertainty whether an autonomous cause of action for “career mismanagement” exists, but held that such a claim could not succeed absent proof that an “administrative act” was unlawful or in breach of the Statute. - Tribunal held Applicant’s putative “career mismanagement” claim fails because none of her challenges to the career decisions could be sustained. ### Admissibility and treatment of challenges arising after September 2009 ### Procedural posture and Tribunal reasoning - The contested decisions that form the basis of the Tribunal’s jurisdiction are dated September 2, 2009. - Applicant raised challenges concerning events subsequent to her return from external assignment; those events post-date by more than two years the September 2009 decisions. - Applicant’s later allegations included: - Fund’s failure to implement the PIP more than three months following her return from external assignment, creating additional uncertainty. - Retaliation for filing an Application with the Tribunal by suddenly implementing the PIP in August 2012 and refusing to support an internal swap arrangement. - Being arbitrarily rated “Not Rated” for the FY2012 APR, based on absence during the review period and her “5” rating for FY2009. - Respondent’s position: allegations relating to events after September 2, 2009 are not admissible because Applicant has not exhausted administrative review for them. - Tribunal’s governing rule: Article V, Section 1 — an application may be filed only after the applicant has exhausted all available channels of administrative review. - Tribunal precedent: strong favoring of recourse to the Grievance Committee because it builds a detailed record (multiple cited IMFAT judgments). - Exception recognized by Tribunal: later-arising claims may be justiciable if they (a) are closely linked with the principal decision contested and (b) have been given some measure of review prior to the Application. - Application of exception: none of Applicant’s post-return challenges had been considered through administrative review prior to filing with the Tribunal; Grievance Committee hearings took place in March 2011, while Applicant returned in December 2011. - Tribunal conclusion: Applicant’s contentions relating to timing of PIP implementation, alleged non-support for an internal swap, and FY2012 APR rating were not subject to any “measure of review” and therefore the Tribunal does not reach the merits of those claims. ### Conclusions and decision ### Tribunal conclusions - Applicant did not meet her burden to show the Fund abused its discretion in: - assigning a performance rating of “5” for the FY2009 APR; - granting a zero percent merit increase for FY2009; - deciding she would be placed on a PIP following her return from a two-year external assignment between 2009 and 2011. - Record shows the FY2009 assessment was not unfair or unbalanced and had a reasonable and observable basis. - Applicant’s MAR followed as a necessary consequence of the APR rating, pursuant to the Fund’s rules. - Supervisors did not fail to provide adequate, timely, and constructive feedback or appropriate guidance and training, given the exigencies of the assignment and Applicant’s level of experience. - No improper motive was demonstrated in assessing FY2009 performance. - Applicant’s allegation of “career mismanagement” lacks merit given the Tribunal’s inability to sustain challenges to the contested career decisions. - Challenges concerning events subsequent to September 2009 were not exhausted through requisite channels of administrative review; Tribunal does not reach their merits. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Application of Ms. “JJ” is denied. --- _Source: https://www.imf.org/-/media/files/imfat/j2014-1.pdf_