## Judgment No. 2017-2 (Ms. “NN”)

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### Case overview and parties
- Applicant: Ms. “NN”, former limited-term staff member.
- Respondent: International Monetary Fund.
- Tribunal composition: Judge Catherine M. O’Regan (President), Judges Andrés Rigo Sureda and Edith Brown Weiss.
- Counsel:
  - Applicant represented by Mr. Peter C. Hansen and Mr. J. Michael King.
  - Respondent represented by Ms. Diana Benoit and Ms. Melissa Su Thomas.
- Principal disputes brought by Applicant:
  - Denial of a pre-screening interview in contravention of Departmental procedures.
  - Allegation of an abusive written comment by a manager when Applicant raised bias concerns.
  - Claim for special consideration in job search due to Departmental reorganization.
  - Challenge to Fund Management’s acceptance of the Grievance Committee’s recommendation declining relief despite finding procedural faults.
- Relief sought by Applicant included:
  - Rescission of the decision denying a pre-screening interview.
  - “Internal” and “incumbent” status for future similar vacancies.
  - 3 years’ salary as moral and intangible damages.
  - Legal fees and costs (claimed total: $33,867.83, including $684.84 related to a complaint not considered).

### Procedural timeline and key procedural rulings
- Key dates:
  - June 6, 2017: Application filed with the Administrative Tribunal.
  - June 8, 2017: Application transmitted to Respondent.
  - July 14, 2017: Respondent filed its Answer; supplemented July 18, 2017.
  - August 17, 2017: Applicant’s Reply submitted.
  - September 18, 2017: Respondent’s Rejoinder filed.
  - November 13–14, 2017: Oral proceedings held (limited to counsel’s oral arguments).
  - November 6, 2017: Tribunal declined to consider an additional late complaint for lack of prior dispute resolution review.
  - December 11, 2017: Judgment issued.
- Provisional relief (G-4 visa / administrative leave):
  - Applicant requested order maintaining G-4 visa status during proceedings.
  - HRD assurance extended administrative leave without pay (and G-4 visa) until December 31, 2017.
  - Tribunal (September 22, 2017) found the request premature and declined to decide on provisional relief at that time.
- Oral proceedings and anonymity:
  - Tribunal denied Applicant’s request to testify as a witness (existing Grievance Committee record and transcripts deemed sufficient).
  - Tribunal granted Applicant anonymity under Rule XXII and held private oral proceedings limited to legal argument on October 3, 2017; oral proceedings were conducted on November 13, 2017.

### Factual background — employment history and COE revision
- Employment and appointment specifics:
  - November 2010: Applicant appointed to a three-year limited-term appointment under GAO No. 3, Rev. 7, Section 3.02.2.
  - Limited-term appointments: up to three years and may be extended once up to a cumulative period of five years.
  - Applicant’s limited-term appointment was extended to the five-year maximum and was to expire in November 2015.
  - Applicant’s Annual Performance Reports: consistently rated “Effective”; managers noted concerns (e.g., “communications and listening skills”); one manager testified Applicant’s performance ranked in the lower third of the Division.
  - Nine months before term end, managers informed Applicant there was no plan to extend beyond November 13, 2015 (Email, February 9, 2015).
- Categories of Employment (COE) revision (effective May 2015 context):
  - COE revision intended to replace fixed-term and limited-term appointments with a single “term” appointment.
  - Staff Paper noted “up to 97 percent” of fixed-term appointments were converted to open-ended appointments under the prior framework.
  - Transitional provision: limited-term appointments expiring on or after May 1, 2015, could be offered a three-year term appointment where Fund wished to continue the relationship.
- Departmental restructuring and recruitment timing:
  - Recruitment for Applicant’s expiring limited-term appointment was delayed; a reclassified vacancy posting occurred in spring 2016, approximately six months after Applicant left active employment; Applicant did not apply for that vacancy.
  - Another vacancy posted in spring 2015 (reclassification of a contractual position to staff) was described by the Fund as “an almost identical role to her own.” Both Applicant and the contractual incumbent applied, along with 130 other external candidates.

### Departmental vacancy selection process and application facts
- Departmental vacancy selection guidelines included an “Internal Vacancy Selection Process” for “Staff + Contractuals with over 2 years of service.”
  - Essential element: “All eligible [Department] internal applicants who meet the requirements of the advertised position are interviewed.”
- Pre-screening and panel interview workflow (as described in Departmental workshop):
  - Step 1 — Pre-screening:
    - “15-30 min. limit pre-screen of all eligible* [Department] applicants (e.g., 10 applicants) to determine the short-list”
    - “Pre-screen conducted by Hiring Manager & HR Team”
  - Step 2 — Panel Interview:
    - “Final short-list – pick 3 to 4 candidates for a panel interview”
    - “60 min. panel interview + DDI Selection Assessment + Writing and or Technical Assessment”
  - Eligibility note: “*Eligibility includes all structural HR policy criteria have been met + minimum qualifications in job standards have been met (degree + years of relevant experience)”
- Application and selection facts for the contested vacancy:
  - Total applicants: 132 persons.
  - Applicant met eligibility requirements and was the only “internal” candidate to apply.
  - Contractual incumbent treated as “external” (employed in Department for less than 2 years).
  - Contractual incumbent and eleven other “external” candidates were invited to pre-screening interviews; Applicant was not pre-screened and therefore ineligible for shortlisting.
  - Shortlist after pre-screening produced three candidates, including the contractual incumbent; contractual incumbent ultimately selected.
  - Final assessments included standardized testing, blind-graded written exercises, and panel interviews. Selection Memorandum cited interview and assessment scores and that the selectee “stood out as the best among the candidates” and had “performed the role exceptionally well.”

### Procedural irregularities, conflict of interest, and communication failures
- Departmental practice testimony:
  - SPM: pre-screening “something that was automatic for [Department] staff.”
  - Former Division Chief: pre-screening “was a standard practice, if an internal candidate applied for a position.”
- Disputed decision-making on excluding Applicant from pre-screening:
  - Applicant alleged ASPM alone made the decision.
  - ASPM described decision as “collective” with hiring manager and in consultation with HRD; Section Chief “concurred” and testified he did not think he had authority to decide pre-screening.
  - SPM and Acting Division Chief did not recall being consulted.
- Conflict of interest concerns:
  - Record shows ASPM had a personal relationship with the contractual incumbent and had sought the incumbent’s assistance for a close family member’s employment; relationship was not disclosed to other selection panel members.
  - Grievance Committee “strongly disapprove[d]” ASPM’s undisclosed involvement because it raised an appearance of conflict of interest.
- Communication failures:
  - Applicant was not informed she would be excluded from the competition nor given reasons; Section Chief’s October 20, 2015 email stated the decision was “based on your situation where you applied for a similar job in the same Section and Division and your term was not extended.”
  - ASPM’s October 16, 2015 email characterized Applicant’s case as “atypical” and included a notation describing a questioner as “not thinking straight and disturbed,” which Applicant was not shown.

### Grievance Committee findings
- Committee conclusions:
  - Found procedural elements deviated from Departmental guidelines and procedures were not followed with respect to Applicant’s application.
  - Concluded no provision permitted denial of pre-screening to Applicant and that once a Department publicizes a hiring process it should abide by its rules.
  - Found Department failed to provide Applicant feedback as required.
  - “Strongly disapprove[d]” ASPM’s undisclosed involvement raising an appearance of conflict of interest.
  - On causation and remedies, the Committee applied its standard (Section 5.10) and concluded procedural irregularities did not “affect the outcome” and recommended denial of monetary relief (citing Section 5.20.1 that monetary relief “may include monetary relief, but may not be punitive in nature”).
- Fund Management accepted the Grievance Committee’s recommendation on March 6, 2017.

### Tribunal legal standards and precedent applied
- Standard of review: discretionary decisions reviewable only if 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).
- Precedents cited: Sachdev; D’Aoust (No. 2); Hanna; Ms. “GG” (No. 2); D’Aoust (No. 2) and others concerning selection decisions, legitimate expectations, and remedial practices.
- Tribunal emphasized that departments are bound to observe their own published internal procedures once adopted and applied consistently.

### Tribunal findings on liability and causation
- Fund abuse of discretion:
  - Tribunal concluded the Fund abused its discretion by deciding not to afford Applicant a pre-screening interview, thereby excluding her from the competition, in contravention of Departmental vacancy selection guidelines and individual assurances that she could apply for vacancies for which she met eligibility criteria.
  - Tribunal found Applicant was not notified of exclusion from competition, contrary to Departmental guidelines.
- On improper motive: the facts (ASPM’s role, undisclosed relationship, non-disclosure to Applicant) “raise a warning light,” but Tribunal found it unnecessary to decide whether improper motive existed.
- Claims dismissed:
  - Tribunal dismissed Applicant’s additional complaints that: (a) Fund abused its discretion in accepting the Grievance Committee’s recommendation not to award relief; (b) Fund was required to provide Applicant special consideration due to reorganization; and (c) Applicant was subjected to abusive written comment to which managers failed to respond.
  - Specifically, Tribunal found the single notation by ASPM insufficient to substantiate actionable “abuse.”

### Remedies — rescission, status relief, and monetary compensation
- Rescission and status relief:
  - Tribunal determined rescission of the decision denying a pre-screening interview was not practicable. (para. 143)
  - Granting “internal” or “incumbent” status for future applications was not necessary to correct effects of the abuse; Applicant had opportunities to seek employment and had received pre-screening for other vacancies she applied for; she did not apply for the reclassified vacancy after leaving active employment. (para. 143)
- Monetary compensation for intangible injury:
  - Tribunal categorized remedial powers and recognized authority to award compensation for intangible injury where procedural failures occurred even if the selection decision was sustainable.
  - Essence of harm identified: breach of Applicant’s expectation of fair treatment (denial of pre-screening interview and failure to notify).
  - Aggravating factor: decision was a considered choice and circumstances raise questions as to reasons for decision.
  - Mitigating factor: evidence Applicant had a relatively slim likelihood of success.
  - Compensation awarded: $7,500 to correct the effects of the Fund’s failure to afford a pre-screening interview and to notify Applicant of exclusion. (para. 147)

### Legal fees and costs award
- Applicant’s claimed fees and costs: $33,867.83 (including $684.84 relating to a complaint not considered).
- Tribunal principles applied:
  - Article XIV, Section 4 authorizes awarding reasonable costs, taking into account nature and complexity of case, nature and quality of work performed, and prevailing rates.
  - Tribunal applies proportionality based on degree of Applicant’s success and may award fees for antecedent administrative proceedings.
- Tribunal assessment and award:
  - Applicant prevailed on the chief complaint but the abuse had limited material consequence; counsel expended time on several non-meritorious claims.
  - Tribunal awarded 50 percent of total legal fees and costs incurred by Applicant after excluding fees/costs related to the complaint not considered by the Grievance Committee or Tribunal.
  - Amount awarded: $16,591.50.

### Final orders (unanimous decision)
- Determinations:
  1. Ms. “NN” prevailed on her claim that the Fund abused its discretion by not affording her a pre-screening interview and by failing to notify her of exclusion from the competition.
  2. Compensation for those breaches: $7,500 awarded to Ms. “NN”.
  3. Additional complaints (Grievance Committee acceptance, special consideration due to reorganization, abusive written comment) were not sustained.
  4. The Fund shall pay Ms. “NN” $16,591.50, being 50 percent of the total legal fees and costs incurred by Ms. “NN” in this case (after excluding fees/costs related to the complaint not considered by either the Grievance Committee or the Administrative Tribunal).

*Administrative Tribunal of the International Monetary Fund, Judgment No. 2017-2, issued December 11, 2017.*

### INTRODUCTION ...........................................................................................................

### INTRODUCTION

### Case overview
- The Administrative Tribunal of the International Monetary Fund adjudged the Application brought by Ms. “NN” (Applicant), a former limited-term staff member, against the International Monetary Fund (Respondent) at hearings on November 13-14, 2017.
- The Tribunal was composed, pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan (President), and Judges Andrés Rigo Sureda and Edith Brown Weiss.
- Applicant was represented by Mr. Peter C. Hansen and Mr. J. Michael King, Law Offices of Peter C. Hansen, LLC. Respondent was represented by Ms. Diana Benoit and Ms. Melissa Su Thomas, Senior Counsels, IMF Legal Department.

### Principal disputes brought by Applicant
- Challenge to the selection process for a vacancy similar in substance to Applicant’s then-occupied limited-term position, specifically:
  - Alleged failure to afford Applicant a pre-screening interview in contravention of Departmental procedures, which Applicant contends precluded further consideration of her candidacy.
  - Allegation of an abusive written comment by a manager when Applicant raised concerns of bias in the selection process.
  - Claim that the Fund should have provided Applicant special consideration in her job search due to Departmental reorganization.
- Challenge to the Fund’s acceptance of the Grievance Committee’s recommendation not to award relief despite finding procedural faults in the selection process.

### Respondent’s principal positions
- The vacancy selection process represented a reasonable exercise of managerial discretion.
- A pre-screening interview was not required in the circumstances, and Applicant has not shown that the lack of such an interview materially prejudiced the outcome.
- The hiring manager’s prior supervisory knowledge of Applicant’s suitability explains the hiring outcome.
- No evidence that Applicant suffered abuse by managers; Applicant was not entitled to special consideration.
- Even if procedural faults existed, compensation is not automatic absent demonstrable harm; Management acted within its discretion in accepting the Grievance Committee’s recommendation.

### Relief sought by Applicant
- Rescission of the decision denying a pre-screening interview.
- Granting Applicant “internal” status for future Fund vacancies for which she meets the basic requirements.
- Granting Applicant “incumbent” status for future applications to Fund positions substantially resembling her limited-term position.
- 3 years’ salary as moral and intangible damages.
- Legal fees and costs, asserted to be awardable under Article XIV, Section 4 of the Tribunal’s Statute if the Application is found well-founded in whole or in part.

### Grievance Committee finding at issue
- The Grievance Committee found procedural elements deviated from Departmental guidelines and could be perceived as unfair but concluded those failings did not materially affect the selection outcome and that it lacked authority to recommend relief; Fund Management accepted the Committee’s recommendation.

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### PROCEDURE

### Procedural timeline and filings
- June 6, 2017: Applicant filed an Application with the Administrative Tribunal.
- June 8, 2017: Application transmitted to Respondent.
- June 12, 2017: Registrar circulated an internal notice summarizing the Application’s issues (pursuant to Rule IV, para. (f)).
- July 14, 2017: Respondent filed its Answer; supplemented July 18, 2017 (pursuant to Rule VIII, para. 4).
- August 17, 2017: Applicant submitted her Reply.
- September 18, 2017: Respondent filed its Rejoinder.
- November 6, 2017: Applicant sought to register an additional complaint for the hearing; Tribunal declined to consider it for lack of prior review through dispute resolution channels.

### Tribunal’s determinations on procedural motions
- The Tribunal declined to consider the late-raised complaint because it had not undergone prior dispute resolution review.
- The Tribunal held oral proceedings limited to counsel’s oral arguments (see section on oral proceedings below).
- The Tribunal granted provisional anonymity for Applicant for the purpose of holding private oral proceedings.

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### REQUEST FOR PROVISIONAL RELIEF (G-4 VISA / ADMINISTRATIVE LEAVE)

### Applicant’s request and basis
- Applicant requested provisional relief pursuant to Article VI, Section 4 of the Tribunal’s Statute, seeking an order that the Fund maintain her G-4 visa status during the pendency of the case and for at least a reasonable time thereafter.
- Applicant asserted irreparable injury in the form of mandatory departure from the United States absent provisional measures.

### Fund’s response and assurances
- The Fund opposed provisional relief, arguing Applicant was not challenging termination or seeking reinstatement and had not shown necessity of a G-4 visa to pursue the case.
- Separately, Fund HRD provided written assurance to Applicant extending administrative leave without pay (and thus G-4 visa status) until December 31, 2017, to “allow time within which the Tribunal can be expected to make a decision on this request.” The HRD communication stated that leave could be ended before December 31 if the Tribunal did not consider it warranted, or extended if the Tribunal directed it or HRD Director considered additional leave justified.

### Tribunal’s ruling on provisional relief
- The Tribunal concluded on September 22, 2017, that the request for provisional relief was premature given HRD’s discretionary extension of administrative leave without pay and Applicant’s G-4 visa status through December 31, 2017.
- The Tribunal therefore declined to render a decision on provisional relief at that juncture.

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### REQUEST FOR ORAL PROCEEDINGS

### Applicant’s requests
- Oral proceedings to testify about her legitimate expectations and the damages she claimed.
- Oral proceedings to allow Applicant to answer questions from the Tribunal or counsel.

### Legal framework cited
- Article XII of the Tribunal’s Statute: Tribunal decides whether oral proceedings are warranted.
- Rule XIII, para. 1, Rules of Procedure: such proceedings held if Tribunal deems them useful.
- Tribunal practice: generally accounts for sufficiency of written record; witness testimony rarely admitted when case comes through the Grievance Committee unless it would clarify a material point.

### Evidence record available
- Transcript of Grievance Committee hearings including testimony from:
  - Applicant;
  - Senior Personnel Manager (SPM) and Assistant SPM (ASPM) of Applicant’s Department;
  - Applicant’s former Division Chief;
  - Acting Division Chief;
  - Applicant’s Section Chief (hiring manager);
  - Human Resources Officer from Human Resources Department (HRD).

### Tribunal’s decisions regarding oral proceedings and witness testimony
- Denied Applicant’s request to testify as a witness before the Tribunal: additional testimony would not be useful to clarify a material point given the existing record and transcripts from Grievance Committee hearings.
- Decided on October 3, 2017, to hold oral proceedings limited to legal arguments by parties’ counsel, finding such proceedings useful to clarify legal issues and probe factual disputes to enhance legal appreciation of the record.
- The oral proceedings were to be held in private, consistent with Article XII of the Statute and Rule XIII, para. 1, and following a provisional decision to grant Applicant anonymity.

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### CONSIDERATIONS AND LEGAL STANDARDS APPLIED (SELECTED)

- The Tribunal referenced Article VI, Section 4 of its Statute and the associated Commentary regarding provisional relief, noting the filing of an application does not suspend implementation of the contested decision but the Tribunal may order interim measures if absence of such measures would cause irreparable harm.
- The Tribunal reiterated practice from prior decisions (e.g., IMFAT Order No. 2016-1; IMFAT Order No. 2015-1; IMFAT Judgment No. 2016-2; IMFAT Judgment No. 2015-3) in determining when provisional relief or witness testimony is appropriate, emphasizing sufficiency of the written record and prior Grievance Committee proceedings.

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*Judgment No. 2017-2, Administrative Tribunal of the International Monetary Fund*

### 23. Oral proceedings were held on November 13, 2017. Each party was allotted a fixed

### j2017-2 - 23. Oral proceedings were held on November 13, 2017. Each party was allotted a fixed

### Oral proceedings
- Oral proceedings were held on November 13, 2017.
- Each party was allotted a fixed period for counsel to present its case, followed by questioning by the Tribunal.
- The Tribunal found the oral proceedings useful in clarifying the legal issues and in providing an opportunity to probe disputes of fact so as to enhance the legal appreciation of the record of the case.
- Article XII of the Statute and Rule XIII, para. 1, of the Rules of Procedure provide: “Oral proceedings shall be open to all interested persons, unless the Tribunal decides that exceptional circumstances require that they be held in private.”

### Applicant’s request for anonymity
- Procedural posture:
  - The Tribunal took a provisional decision on Applicant’s request for anonymity in connection with its decision to hold oral proceedings and, after further review of issues and evidence, took a final decision to grant Applicant’s request for anonymity.
- Applicant’s position:
  - Applicant sought anonymity pursuant to Rule XXII on the ground that “good cause for such exists given that Applicant’s performance was: (1) wrongfully questioned by Fund officials as well as by the Grievance Committee; and (2) was made a factor in the challenged decision.”
- Respondent’s position (the Fund):
  - The Fund opposed anonymity, arguing Applicant’s concern that evidence relating to her performance would be revealed did not meet the “good cause” standard and that the central issue was whether the hiring manager had sufficient information about Applicant such that it was reasonable to forego a pre-screening interview.
  - The Fund submitted that Applicant “fails to identify any matter of personal privacy at stake . . . sufficient to overcome the ‘value of public justice.’”
- Applicant’s reply:
  - Applicant argued the Tribunal “cannot evaluate the merits in a published judgment without referring to the managers’ alleged views of her performance, or to the parties’ respective arguments and presentations of evidence on these points. For such reason and good cause, anonymity should be granted.”
- Governing rule excerpt — Rule XXII (Anonymity):
  - 1. In accordance with Rule VII, Paragraph 2(j), an Applicant may request in his application that his name not be made public by the Tribunal.
  - 2. In accordance with Rule VIII, Paragraph 6, the Fund may request in its answer that the name of any other individual not be made public by the Tribunal. An intervenor may request anonymity in his application for intervention.
  - 3. In accordance with Rule VIII, Paragraph 5, and Rule IX, Paragraph 6, the parties shall be given an opportunity to present their views to the Tribunal in response to a request for anonymity.
  - 4. The Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual.
- Precedent and rationale:
  - In Mr. “HH”, IMFAT Judgment No. 2013-4 (October 9, 2013), para. 43, the Tribunal concluded that where key evidence relates to assessment of performance, it is not possible to protect confidentiality of the performance review process without concealing Applicant’s identity; absent anonymity, the performance review process would be affected by perceived risk of disclosure.
  - The Tribunal has reaffirmed in subsequent judgments (Ms. “JJ”, IMFAT Judgment No. 2014-1; Mr. “KK”) that protecting candor in the performance evaluation process is a ground for granting anonymity.
  - The Tribunal applied the same principle here because perceptions of Applicant’s performance are a key factual element supporting the Fund’s arguments that (a) a pre-screening interview was unnecessary because the hiring manager (also her supervisor) was already acquainted with her performance, and (b) any error in denying a pre-screening interview did not affect selection outcome given the manager’s opinion of her performance.

### Factual background — key findings
- Overview:
  - The Tribunal summarized key facts, some disputed, and organized the factual background under employment history, COE revision and restructuring, and the vacancy selection process.

- A. Applicant’s employment history with the Fund
  - In November 2010, Applicant was appointed to a three-year “limited-term” appointment pursuant to GAO No. 3, Rev. 7, Section 3.02.2, which provided that “[l]imited-term appointments shall be for a period of up to three years and may be extended once up to a cumulative period of five years in that position.”
  - Under the employment framework at Applicant’s appointment, staff were hired on either:
    - (i) “limited-term” appointments, which carried no expectation of conversion to “open-ended” appointments; or
    - (ii) “fixed-term” appointments, which could be converted after three years to “open-ended” appointments upon meeting specified criteria.
  - Effective May 2015, the Fund revised its employment framework as a result of a review of categories of employment.
  - At the conclusion of Applicant’s first three years, her limited-term appointment was extended for a further two years, up to the maximum of five years.
    - At the three-year mark, supervisors were reluctant to extend, but the Senior Personnel Manager (SPM) regarded Applicant as a “very engaged, very invested colleague,” and persuaded managers to renew to the maximum five-year total. Applicant’s appointment was to expire by its terms in November 2015.
  - Throughout her five years as a limited-term staff member, Applicant was consistently rated “Effective” on her Annual Performance Reports (APRs), though managers harbored concerns about elements of her job performance.
    - The former Division Chief described comments on Applicant’s APRs as a “pretty strongly-worded message that there’s some work to be done.”
  - Supervisors observed some improvement after mentoring, but continued to identify gaps and issues, including “communications and listening skills”; one manager testified Applicant’s performance ranked in the lower third of staff in the Division.
  - Nine months before the end of her fifth year, managers met with Applicant and then “communicat[ed] formally there [was] no plan to extend [Applicant] beyond the date of [her] agreement.” (Email from Acting Division Chief to Applicant, cc: Section Chief, February 9, 2017.)
    - The email stated the limited-term position ends on November 13, 2015; advised Applicant to apply for positions before that date or consider opportunities outside the Fund; and directed Applicant to follow up with Department HR regarding conversion rules before and after May 1st.

- B. Revision of Fund’s Categories of Employment (COE) and restructuring of Applicant’s Department
  - The 2015 expiration of Applicant’s limited-term appointment and the contested vacancy selection occurred amid two initiatives begun a year earlier: revision of COE and departmental restructuring.
  - The COE revision aimed to promote “greater flexibility in staff appointments and to reduce reliance on contractual appointments.” (Staff Paper, “Categories of Employment,” October 2, 2014, p. 2, attached to EBAP/14/89 (October 3, 2014).)
    - Principal effect: replace fixed-term and limited-term staff appointments with a single “term” appointment for all new staff, carrying the possibility of conversion to open-ended status.
    - The Staff Paper noted that “up to 97 percent” of fixed-term appointments were converted to open-ended appointments under the then existing framework. (Id., p. 11, Box 2.)
    - The Staff Paper anticipated transitional issues and stated that “[i]n principle, appointments of current staff and contractual employees who were brought on board prior to May 1, 2015 will be governed by the existing terms and conditions.”
    - Transitional provision excerpt: For limited-term appointments that expire on or after May 1, 2015, where the Fund wishes to continue the employment relationship, and where the function is determined to be neither temporary nor rotational, the incumbent would be offered a three-year term appointment under the new framework; if the staff member would be carrying out functions substantially similar to those performed under his or her limited term appointment, departments would need to decide whether to allow the term appointment to expire or whether to nominate the staff member to an open-ended appointment at the end of the term appointment; if the department does not nominate a staff member for an open-ended appointment, no renewal would be allowed, and the term appointment would expire. (Id., p. 23.)
  - The record revealed limited information about how and when staff and managers were notified of the COE revision and transitional arrangements.
  - It was unclear whether the February 9, 2015 communication to Applicant reflected a decision under COE transitional provisions or standard practice advising limited-term appointees of expiration; Applicant was directed to Department HR for clarification.
  - An exchange between the ASPM and the Acting Division Chief indicated plans to share transition arrangements and emphasized Applicant should understand her limited-term will lapse and it does not guarantee conversion; Applicant could apply and compete for posted positions and there were no restrictions on applying to other positions. (Email from ASPM to Acting Division Chief, February 4, 2015, re [Applicant].)
  - The revised COE also addressed contractual employees performing core work; contractual employees were to be engaged only for temporary needs (i.e., not exceeding four years) or rotational work.
    - Departments, in consultation with HRD, were to survey contractual positions; in Applicant’s Department, fourteen contractual positions were reclassified as term staff appointments. (SPM, Tr. I, p. 69; ASPM, Tr. I, p. 235.)
    - Contractual employees occupying those positions were permitted to compete for the new staff appointments.
  - Applicant’s Department restructuring delayed recruitment for Applicant’s expiring limited-term appointment; although Applicant had been advised recruitment would be posted in the “July – August timeframe,” it was not posted until spring 2016, some six months after Applicant had left active employment with the Fund. (ASPM, Tr. I, p. 233.) Applicant did not apply for that vacancy.
  - While that recruitment was delayed, another vacancy was posted in Applicant’s Section in spring 2015 as a contractual position was reclassified and replaced by a staff appointment; the Fund described that vacancy as “an almost identical role to her own.” Both Applicant and the contractual incumbent applied, along with 130 other external candidates.

- C. Vacancy selection process
  - Fund-wide policy: once a vacancy closes, HRD sends the hiring department a preliminary list of candidates who meet eligibility requirements; departments may use various methods to shortlist and select (e.g., tests, one-on-one interviews, panel interviews).
  - An HR Officer testified to the Grievance Committee that “the department conducts its own recruitment. What we do is we facilitate . . . .” (Tr. II, p. 257.)
  - Departments can test to further shortlist internal candidates; they can interview all internal candidates or use any means of pre-screening they wish to establish their short list. (Tr. II, pp. 261-262.)

*International Monetary Fund Administrative Tribunal (IMFAT) judgment content.*

### 46. Applicant’s Department, as part of an “employee engagement initiative” undertaken in

### j2017-2 - 46. Applicant’s Department, as part of an “employee engagement initiative” undertaken in

### Departmental vacancy selection process and procedures
- Department adopted an “Internal Vacancy Selection Process” for “Staff + Contractuals with over 2 years of service.”
- Essential element: “All eligible [Department] internal applicants who meet the requirements of the advertised position are interviewed.”
- Pre-screening purpose: “to at least give [Department] staff the opportunity to go in front of a hiring manager and present themselves.”
- Post-process feedback: “All internal applicants are given feedback on interview performance and test results once the process has closed.”

How Pre-Screening and Panel Interview work (as described in Departmental workshop):
- Step 1: Pre-screening
  - “15-30 min. limit pre-screen of all eligible* [Department] applicants (e.g., 10 applicants) to determine the short-list”
  - “Pre-screen conducted by Hiring Manager & HR Team”
  - “Non-selected candidates for a panel interview will be notified accordingly”
- Step 2: Panel Interview
  - “Final short-list – pick 3 to 4 candidates for a panel interview including [Department] and non-[Department] candidates (based on pre-screen and other paper credentials)”
  - “60 min. panel interview + DDI Selection Assessment + Writing and or Technical Assessment”
- Eligibility note: “*Eligibility includes all structural HR policy criteria have been met + minimum qualifications in job standards have been met (degree + years of relevant experience)”

### Application facts and selection outcome
- Total applicants for the contested vacancy: 132 persons.
- Applicant met the eligibility requirements and was the only “internal” candidate to apply.
- The contractual incumbent was treated as “external” because employed in the Department for less than 2 years.
- The contractual incumbent and eleven other “external” candidates were invited to pre-screening interviews; Applicant was not pre-screened and thus not eligible for shortlisting.
- Shortlisting after pre-screening produced three candidates, including the contractual incumbent.
- Final assessment components: standardized testing, blind-graded written exercises, and panel interviews.
- Selection panel composition: Section Chief (hiring manager), Assistant Senior Personnel Manager (ASPM), and two other Department staff members.
- Contractual incumbent was selected; Selection Memorandum cited interview and assessment scores and that the selectee “stood out as the best among the candidates” and had “performed the role exceptionally well” with positive feedback from clients and colleagues.

### Procedural irregularities, conflict of interest, and communication failures
- Departmental practice: Managers and SPM testified that pre-screening was “automatic” for internal candidates who met minimum eligibility.
  - SPM: pre-screening “something that was automatic for [Department] staff.”
  - Former Division Chief: pre-screening “was a standard practice, if an internal candidate applied for a position.”
- Two distinct pathways created by Department guidelines:
  - Internal candidates who meet minimum eligibility: all given pre-screening interviews.
  - External candidates: only selected externals pre-screened.
  - Persons not pre-screened could not be short-listed.
- Controversy over who decided to exclude Applicant from pre-screening:
  - Applicant alleges ASPM alone made decision.
  - ASPM described decision as “collective” with hiring manager and in consultation with HRD.
  - Section Chief testified he “concurred” with decision based on ASPM’s consultation with an HR Officer and did not think he had authority to decide pre-screening.
  - SPM and Acting Division Chief did not recall being consulted.
- HR Officer’s account to ASPM: other departments sometimes do not re-interview a person “if the person has been interviewed many times within the last six months,” but advised ASPM to consider Department practice.
- Non-disclosure of a personal relationship:
  - Record shows ASPM and contractual incumbent had a personal relationship extending to ASPM seeking the contractual incumbent’s assistance in employment efforts for a close family member.
  - Relationship was not disclosed to other selection panel members.
  - Grievance Committee “strongly disapprove[d]” of ASPM’s involvement without disclosure because it raised an appearance of a conflict of interest.
- Communication failures:
  - Applicant was not informed she would be excluded from the competition or why she was not being interviewed.
  - Section Chief’s October 20, 2015 email to Applicant: “A decision not to pre-screen was based on your situation where you applied for a similar job in the same Section and Division and your term was not extended.”
  - ASPM’s October 16, 2015 email characterized Applicant’s case as “atypical” and noted a collective decision related to her limited-term appointment (“L-T”).
  - ASPM wrote on a circulated summary that he “refused to respond” to one of Applicant’s questions and described the questioner as “not thinking straight and disturbed”; Applicant was not shown that notation.

### Grievance Committee findings and remedial conclusions
- Committee considered the Grievance via oral hearings and party briefs.
- Committee identified several irregularities and “disagree[d]” with the Fund’s contention that exclusion of Applicant “was not violative of any obligation it had to Grievant.”
- Procedural findings:
  - No provision in Departmental guidelines permitted denial of pre-screening to Applicant.
  - Once a Department creates and publicizes a hiring process, it should abide by its own rules.
  - Department failed to provide Applicant feedback as required: “[a]ll internal applicants are given feedback on interview performance and test results once the process has closed.” Applicant was not advised she would not be interviewed nor given reasons.
  - Procedures “were not followed with respect to Grievant’s application” and Applicant was prematurely removed “in violation of applicable procedures” (Staff Handbook, Chapter 11.03, Section 5.10).
  - The Committee rejected a contention that selection was tainted by ethnic or nationality discrimination or other improper motive.
- Concerning conflict of interest:
  - Committee “strongly disapprove[d]” ASPM’s undisclosed involvement with the contractual incumbent.
- On causation and remedies:
  - Committee applied its standard: it will uphold a challenge if the challenged decision was taken “in violation of applicable procedures in a manner that affected the outcome” (Staff Handbook, Chapter 11.03, Section 5.10).
  - Committee concluded procedural irregularities did not “affect the outcome”: “When all of the evidence is considered, Grievant would not have been selected for [the vacancy], even if she had been pre-screened with an interview and assessments prescribed by the Departmental guidelines.”
  - Committee therefore recommended rescission of the selection decision was not warranted.
  - On monetary relief: Committee cited its remedial authority (Staff Handbook, Chapter 11.03, Section 5.20.1) and held that an award of monetary relief without proof of loss or injury would be punitive; it found Applicant failed to prove loss or injury and recommended denial of monetary relief.
  - Committee distinguished its approach from the Administrative Tribunal, noting the Tribunal has awarded monetary relief for procedural derelictions even when outcome was unaffected, but the Committee felt constrained by Section 5.20.1 not to recommend punitive monetary awards.
- Outcome of internal process:
  - On January 7, 2017, Grievance Committee recommended denial of Applicant’s Grievance in its entirety.
  - On March 6, 2017, Fund Management notified Applicant it had accepted the Grievance Committee’s recommendation.
  - On June 6, 2017, Applicant filed her Application with the Administrative Tribunal.

### Applicant’s principal contentions (summary)
- Applicant’s key arguments in the Application and Reply:
  1. Wrongful denial of opportunity to compete for a vacancy closely matching her limited-term position when denied a pre-screening interview in contravention of Department guidelines.
  2. Entitlement to relief because material violations of staff procedural rights are inherently damaging and Applicant suffered concrete, identified harm from the vacancy selection process.
  3. Fund improperly denied relief after Grievance Committee’s findings of procedural violations; Grievance Committee and Fund Management should have followed Tribunal precedents awarding relief for intangible injury in cases of procedural failure.
  4. Applicant was entitled to special consideration in her job search in light of the Departmental reorganization.

*Source: Grievance Committee Recommendation and Report; Staff Handbook, Chapter 11.03; Fund Management decision; Administrative Tribunal filings.*

### 5. Applicant was subjected to an abusive written comment, to which managers

### j2017-2 - 5. Applicant was subjected to an abusive written comment, to which managers failed to respond, when she raised concerns of bias in the selection process.

### Applicant’s claims and requested relief
- Applicant alleges she was subjected to an abusive written comment and that managers failed to respond when she raised concerns of bias in the selection process.
- Applicant seeks the following relief:
  - rescission of the decision to deny her a pre-screening interview;
  - granting Applicant “internal” status for purposes of applying to future Fund vacancies for which she meets the basic requirements;
  - granting Applicant “incumbent” status for any future applications to Fund positions substantially resembling the limited-term position she had held;
  - 3 years’ salary as moral and intangible damages to “compensate [Applicant] for the Fund’s denial of her rights, the wrongful truncation of her valid application [for the vacancy], [the ASPM]’s unpunished abuse, and all harms that followed”;
  - legal fees and costs, which the Tribunal may award, in accordance with Article XIV, Section 4 of the Statute, if it concludes that the Application is well-founded in whole or in part.

### Respondent’s principal contentions
- The principal arguments presented by Respondent in its Answer and Rejoinder may be summarized as follows:
  - The Fund’s decision not to grant Applicant a pre-screening interview for the vacancy to which she applied was appropriate in the circumstances.
  - The vacancy selection decision was a reasonable exercise of managerial discretion, which followed proper Fund-wide processes and was not tainted by bias or other improper factors.
  - If the Tribunal concludes that there was a procedural fault in the selection process, no relief is appropriate because Applicant has not shown that she experienced any harm as a result.
  - The decision of Fund Management to accept the Grievance Committee’s recommendation was reasonable.
  - Applicant was not entitled to special consideration in her job search.
  - Applicant’s claim of “abuse” is unfounded.

### Relevant provisions of the Fund’s internal law (as cited)
- GAO No. 3 (Employment of Staff Members), Rev. 7 (May 1, 2003), Section 3:
  - Section 3 sets forth types of staff positions and appointments.
  - 3.01 Types of Staff Positions:
    - 3.01.1 Regular positions: for an indefinite period.
    - 3.01.2 Term positions: positions for a limited period and subject to a sunset clause.
  - 3.02 Types of Staff Appointments:
    - 3.02.1 Open-ended appointments:
      - 3.02.1.2 Before being offered an open-ended appointment, staff shall be hired initially on a fixed-term appointment; persons holding fixed-term appointments shall be designated as fixed-term staff members.
      - 3.02.1.3 Conversion from fixed-term to open-ended subject to meeting performance and staffing requirements.
    - 3.02.2 Limited-term appointments:
      - 3.02.2.1 Limited-term appointments shall normally be used in the following cases: (i) organization/functions under review; (ii) function supports mission but Fund does not wish to build expertise or skills expected to change significantly; (iii) function required for a limited period or fewer positions after startup.
      - 3.02.2.2 Limited-term appointments shall be for a period of up to three years and may be extended once up to a cumulative period of five years in that position. Limited-term appointments shall not carry any expectation of conversion to open-ended appointments; persons holding limited-term appointments shall be designated as limited-term staff members.
- Staff Handbook, Chapter 11.03, Section 5 (Grievance Committee):
  - 5.10 Standard of Review — The Grievance Committee shall review whether the challenged decision was:
    - i. taken by an authority or organ that did not have authority to take the decision;
    - ii. inconsistent with applicable Fund rules or regulations or otherwise based on an error of law;
    - iii. based on erroneous facts or in disregard of essential facts;
    - iv. taken in violation of applicable procedures in a manner that affected the outcome.
    - When discretionary authority is involved, the decision was reviewable if:
      - i. improperly influenced by irrelevant factors, including bias, discrimination or ulterior motive; or
      - ii. based on a manifestly erroneous assessment of the information to be properly considered.
  - 5.20.1 Remedies — If the Committee concludes a complaint is well-founded, it should assess relief needed to correct detrimental effects; such remedy may include monetary relief, but may not be punitive in nature.
- Staff Handbook, Chapter 5.01, Section 17:
  - 17.2 Administrative Leave without Pay Pending Decision on an Appeal of Termination of Appointment — In special circumstances where the staff member is at risk of irreparable harm (e.g., to preserve visa status or to avoid deportation), a staff member who has been notified that his or her appointment will be terminated and who initiates the grievance process as provided may be placed on administrative leave without pay pending the outcome. Any such period shall end on the last day of the month in which the Managing Director notifies the staff member of his or her final decision. Extensions for filing an application with the Administrative Tribunal may be granted for a period of three months or, if an application is filed in a timely manner, until the date of the Tribunal’s final judgment.

### Departmental vacancy selection guidelines cited
- Pre-screening and panel interview process described in a Departmental workshop presentation:
  - Step 1: Pre-screening
    - 15-30 min. limit pre-screen of all eligible* [Department] applicants (e.g., 10 applicants) to determine the short-list
    - Pre-screen conducted by Hiring Manager & HR Team
    - Non-selected candidates for a panel interview will be notified accordingly
  - Step 2: Panel Interview
    - Final short-list – pick 3 to 4 candidates for a panel interview including [Department] and non-[Department] candidates (based on pre-screen and other paper credentials)
    - 60 min. panel interview + DDI Selection Assessment + Writing and or Technical Assessment
  - *Eligibility includes all structural HR policy criteria have been met + minimum qualifications in job standards have been met (degree + years of relevant experience)

### Issues presented for Tribunal consideration
- The Application presents the following principal issues:
  1. Did the Fund abuse its discretion by denying Applicant the opportunity to compete for a position substantially similar to her expiring one, when it failed to afford her a pre-screening interview, thereby precluding further consideration of her candidacy?
  2. Did the Fund abuse its discretion in accepting the Grievance Committee’s recommendation not to award relief to Applicant after the Committee found procedural faults in the vacancy selection process?
  3. Was the Fund required to provide Applicant special consideration in her job search in light of the Departmental reorganization?
  4. Has Applicant shown that she was subjected to abusive written comment, to which managers failed to respond, when she raised concerns of bias in the selection process?
  5. If the Tribunal concludes the Application is well-founded in whole or in part, what relief shall it prescribe?

### Standard of review and precedents applied
- The Tribunal applies the standard from the Commentary on the Statute: discretionary 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.
- Precedents:
  - D’Aoust (No. 2) and Sachdev are cited for principles that:
    - selection decisions are primarily the province of decision-making officials and the Tribunal should not substitute its own assessment of candidates’ merits;
    - staff members have a right to have candidacy fairly considered in accordance with internal law and general international administrative law;
    - non-selection challenges are reviewed against Fund internal law and practice.
  - Sachdev resulted in monetary compensation where the Tribunal found a series of procedural faults affecting the integrity of the selection process, though it sustained the non-selection decision itself.

### Analysis focal points regarding pre-screening denial
- The central legal question: whether denying Applicant a pre-screening interview (a prerequisite to advancing to the shortlist under the Department’s guidelines) was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.”
- Applicant’s position:
  - As an “internal” candidate meeting eligibility requirements, Applicant contends she was entitled to a pre-screening interview under the Department’s guidelines.
  - Applicant frames her injury as being denied the opportunity to compete and to make her case in person to the hiring manager, not as a claim to be the most qualified candidate or to be hired.
  - Seeks rescission of the decision to deny a pre-screening interview as a primary form of relief.
- Respondent’s position:
  - Pre-screening interviews are not mandatory in every case; Departmental practice does not amount to a mandatory Fund policy.
  - The purpose of a pre-screening interview did not apply because Applicant had already demonstrated suitability by performing a substantially similar job under the hiring manager’s direct supervision.
  - The failure to afford a pre-screening interview did not prejudice the outcome of the selection process.

*Source: Administrative Tribunal case materials as set out in the provided content.*

### 92. In support of its first argument, the Fund emphasizes that departments are given “wide

### IMFAT decision: denial of pre-screening interview and review of Grievance Committee recommendation (paras. 92–117)

### Fund-wide policy and departmental discretion
- The Fund-wide policy, according to an HRD intranet posting included in the record, provides: “[o]nce a vacancy closes, HRD sends the hiring department a preliminary list of candidates who meet the eligibility requirements for the position. . . . Departments may use various methods to shortlist and select (e.g., tests, one-on-one interviews, panel interviews).”
- Testimony of the HR Officer: a “department conducts its own recruitment” and may choose among various methods to establish a shortlist. (Tr. II, pp. 257, 261-262.)
- Tribunal finding (para. 94): departments were given discretion to fashion their own selection processes; once Applicant’s Department adopted a process that included pre-screening interviews for all internal candidates and applied it consistently, it was bound to abide by that process.
- Legal authorities cited by the Tribunal to support that an organization must observe its internal law governing selection decisions: Sachdev, para. 101; D’Aoust (No. 2), para. 74; In re Pinto, ILOAT Judgment No. 1646 (1997), Consideration 6.

### Failure to follow procedures, feedback obligations, and legitimate expectations
- Department guidelines stated: “Non-selected candidates for a panel interview will be notified accordingly.”
- Record shows Applicant was not informed of the decision to exclude her from the competition and did not receive feedback on her non-selection (para. 96).
- Tribunal view: failure to notify or provide feedback contradicted Department guidelines and general principles of international administrative law (see Sachdev, para. 149 on importance of feedback).
- Tribunal conclusion (paras. 104–108, 111): it was unfair to exclude Applicant from the competition without affording the pre-screening interview guaranteed by Departmental vacancy selection guidelines; Applicant had a legitimate expectation to be treated in accordance with those guidelines and with individualized assurance given in February 2015 that she could apply to other vacancies.

### Rationale offered by managers and assessment of prejudice
- Managers’ explanations given to Applicant:
  - ASPM to Section Chief (Email, October 16, 2015): “the only reason we did not prescreen [Applicant] was on the basis of the decision we had made about her L-T and furthermore this position is in the same division and the same team and similar role.”
  - Section Chief to Applicant (Email, October 20, 2015): decision “based on [her] situation where [she] applied for a similar job in the same Section and Division and [her] term was not extended.”
- Testimony indicating the decision was “atypical” (Section Chief) and that Applicant “wasn’t an unknown quantity” (SPM) (Tr. I, pp. 73-74, 100; Tr. II, pp. 128-129, 141).
- Contrasting testimony: Department managers said pre-screening interview was “automatic for [Department] staff”, “specific for that position each and every time”, and a “standard practice, if an internal candidate applied for a position.” (SPM, Tr. I, pp. 72, 77; former Division Chief, Tr. I, p. 194.)
- Tribunal finding (paras. 98–107): whether supervisors’ performance concerns were well-founded is not the issue; the question is whether it was fair to exclude Applicant from the competition without subjecting her to the established process so her strengths and weaknesses could be assessed like any other internal candidate.

### Improper motive, decision-making process, and Tribunal stance
- Applicant alleged decision not to pre-screen was improperly motivated to favor another candidate; she argued exclusion suggested ASPM feared Applicant might prevail.
- Respondent contested evidence of manipulation to favor the contractual incumbent.
- Tribunal observations (para. 110): ASPM made the initial decision, consulted HRD, conveyed decision to Section Chief who concurred; ASPM failed to disclose a personal relationship with the contractual incumbent; Applicant was not informed of exclusion—taken together these facts “raise a warning light” though Tribunal found it unnecessary to decide improper motive.
- Tribunal conclusion (para. 112): Fund abused its discretion by deciding not to afford Applicant a pre-screening interview and thereby excluding her from the competition.

### Grievance Committee recommendation, standard of review, and remedies
- Grievance Committee concluded procedural faults did not affect the outcome and recommended no relief; Fund Management accepted that recommendation. (para. 113)
- Applicant’s contentions regarding the Tribunal’s duty:
  - Ensure the Tribunal’s interpretations of Fund law are applied throughout the Fund (including the Grievance Committee).
  - Prevent development of a competing body of Fund law (e.g., on damages).
  - Ensure timely and fair justice when violations are established. (para. 114)
- Respondent’s contentions:
  - The Grievance Committee’s recommendation is not an “administrative act” reviewable under the Tribunal’s Statute.
  - The recommendation was consistent with the Committee’s standard of review and authority to recommend remedies.
  - Awarding relief would be inconsistent with Tribunal precedents.
  - Management was within discretion to accept a reasoned recommendation. (para. 115)
- Tribunal legal framing (paras. 116–117):
  - Prior Tribunal holdings: Grievance Committee recommendations do not themselves constitute an “administrative act”; the Committee is advisory and Management may accept or reject recommendations (D’Aoust, para. 17; Ms. “BB”, para. 64).
  - Even assuming Fund Management’s acceptance of the recommendation is justiciable, it was not unreasonable for Management to accept the Committee’s recommendation given the Committee’s standard of review and its role as part of a dispute settlement process.
  - The core issue raised is differing approaches between the Grievance Committee and the Administrative Tribunal on remedies for intangible injury arising from failures of fair process; Tribunal has authority to find liability for procedural irregularity even when an individual decision is legally sustainable (Ms. “C”, para. 44).

*Source: IMF Administrative Tribunal judgment excerpts (paras. 92–117).*

### 118. It is notable that although Applicant has framed the argument principally as a challenge

### j2017-2 - 118. It is notable that although Applicant has framed the argument principally as a challenge

### Tribunal jurisdiction and scope of challenge
- Applicant framed her argument principally as a challenge to the “Fund’s agreement with [the] Grievance Committee Recommendation against relief” in her individual case.
- Applicant also cited Article II, Section 2(b), of the Tribunal’s Statute, asserting that the “Tribunal is empowered to order even major changes to the Grievance Committee’s method as a matter of regulatory review.”
- Article II, Section 2(b) defines the Tribunal’s jurisdiction to challenges to “regulatory decisions” of the Fund as “any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund.”
- Respondent did not address Applicant’s complaint as a challenge to a “regulatory decision.” (para. 118)
- The Tribunal found Applicant had not clearly raised, in writing or at oral argument, a challenge to the “regulatory decision” governing the Grievance Committee’s standard of review, and Applicant did not seek rescission of that “regulatory decision.” Consequently, the Tribunal declined to address such a challenge. (para. 119)

### Coherence of the Fund’s dispute resolution system and Grievance Committee practice
- Applicant asserted that “Fund staff are entitled to a unified body of Fund law and rights” and that the Fund’s approach “. . . will force future grievants to the Tribunal’s door to obtain justice under the Tribunal’s doctrines”; Applicant argued such an approach is “not consistent with a ‘robust’ dispute resolution system,” which is “‘fair and seen to be fair.’” (quoting IMFAT Judgment No. 2015-2, para. 53). (para. 120)
- The Tribunal emphasized the desirability of coherence within the Fund’s dispute resolution system and stated that it would be desirable for the Grievance Committee, when interpreting its own mandate, to strive to decide matters consistently with the jurisprudence of the Administrative Tribunal. (para. 120)
- The Tribunal noted concern that the Grievance Committee concluded it was beyond its remit to recommend relief when it found a failure of fair process had not “affected the outcome,” and that the Committee characterized the Tribunal’s awards of compensation for procedural failure as tantamount to “punitive damages.” The Committee contrasted Staff Handbook, Chapter 11.03, Section 5.20.1 (remedies “may include monetary relief, but may not be punitive in nature”) with Administrative Tribunal practices. (para. 121)
- The Tribunal underlined that its practice to award compensation for intangible injury is aimed to “make applicants whole,” particularly where rescission is not appropriate, and emphasized that its remedial practices are rooted in principles of compensation and not punishment. (para. 122)

### Applicant’s claims and Tribunal findings on employment status and process
- Applicant claimed entitlement to special consideration in job search, invoking GAO No. 16, Rev. 6, Section 12 (separation provisions for “reduction in strength, abolition of position or change in job requirements”), because departmental reorganization delayed posting and a “reduction in strength was at least temporarily pursued by the Fund.” (para. 124)
- Respondent asserted Applicant’s limited-term appointment “simply expired in accordance with its terms” and cited GAO No. 3, Rev. 7, Section 3.02.2.2: “[l]imited-term appointments shall not carry any expectation of conversion to open-ended appointments in the position.” Respondent maintained Applicant “had no claim to further employment beyond that period, and no right to special consideration . . . in her efforts to secure a subsequent position.” (para. 125)
- Tribunal precedent cited: limited-term appointments are a distinct category; acceptance places staff “on notice that the appointment will conclude by its terms unless an extension is offered.” (Hanna, para. 94). (para. 126)
- Hanna held GAO No. 16, Rev. 6, Section 12 did not apply where abolition coincides with expiration of a limited-term appointment; reassignment assistance applies when appointment is cut short before term end but not when expiration coincides with abolition. (Hanna, paras. 98, 101–103). (para. 127)
- Applicant argued she had an expectation of continued employment due to plans to convert her position to a term position after COE revision and that “she had—until the freezing of the position—the prospect of converting to a permanent version of her limited-term position, which nearly everyone in her situation was allowed to do.” (para. 128)
- Tribunal findings undermining Applicant’s expectation claim:
  - Applicant’s appointment was to expire by its terms; managers had informed her nine months earlier that no further Fund employment would automatically be afforded. (Email from Acting Division Chief to Applicant, cc: Section Chief, February 9, 2015). (para. 129)
  - Applicant was told she could apply to the position once posted and to other positions but was reminded of prior lack of success and advised to seek other opportunities including outside the Fund. (para. 129)
  - Applicant did not apply to the vacancy posted in spring 2016 after she left active employment. (para. 129)
- The Tribunal concluded Applicant produced no evidence that circumstances (reorganization or COE revision) created an expectation of continued employment; Applicant had been expressly notified she would not be extended. The Tribunal concluded the Fund was not obliged to give Applicant special consideration in her job search. (paras. 130–131)

### Allegation of abusive written comment
- Applicant alleged “written abuse” based on the ASPM’s notation on a circulated meeting summary that she was “not thinking straight and disturbed” after she raised concerns of bias; the notation was not forwarded to Applicant and surfaced in Grievance Committee discovery. ASPM characterized Applicant’s question as “uncalled for” and “not right.” (para. 132)
- Applicant called the notation an “aggressive smear” and a “vehement personal attack” lacking managerial rebuke. (para. 133)
- Respondent argued the document, not circulated to Applicant and discovered through litigation, cannot support a cause of action and that the notation did not rise to prohibited conduct; the notation reflected ASPM’s offense at Applicant’s accusation. (para. 134)
- Tribunal finding: the single notation was insufficient to substantiate “abuse” by the ASPM; while possibly inappropriate, it did not constitute actionable workplace hostility to which managers failed to respond. (para. 135)

### Conclusions on liability
- Applicant prevailed on the claim that the Fund abused its discretion by not affording her a pre-screening interview—thereby excluding her from competition for the vacancy—in contravention of Departmental vacancy selection guidelines and individual assurances that she could apply for vacancies for which she met eligibility criteria. The Fund also failed to notify Applicant that she had been excluded from the competition. These acts breached the Fund’s rules and Applicant’s legitimate expectations. (para. 136)
- The Tribunal dismissed the following additional complaints:
  - (a) that the Fund abused its discretion in accepting the Grievance Committee’s recommendation not to award Applicant relief after the Committee found procedural faults; (b) that the Fund was required to provide Applicant special consideration in her job search due to reorganization; and (c) that Applicant was subjected to abusive written comment to which managers failed to respond. (para. 137)

### Remedies sought by Applicant and the Tribunal’s remedial framework
- Applicant sought:
  - (a) rescission of the decision to deny a pre-screening interview;
  - (b) granting “internal” status for purposes of applying to future Fund vacancies for which she meets the basic requirements;
  - (c) granting “incumbent” status for any future applications to Fund positions substantially resembling her limited-term position;
  - (d) 3 years’ salary as moral and intangible damages to “compensate [Applicant] for the Fund’s denial of her rights, the wrongful truncation of her valid application [for the vacancy], [the ASPM]’s unpunished abuse, and all harms that followed”; and
  - (e) legal fees and costs, which the Tribunal may award in accordance with Article XIV, Section 4 of the Statute, if the Application is well-founded in whole or in part. (para. 138)
- Fund’s response: alleged procedural fault does not automatically justify compensation absent harm; the nature and severity of the procedural error here is minimal compared with other cases awarding compensation for intangible injury. (para. 139)
- Tribunal’s remedial authority: Article XIV, Section 1 of the Statute provides that if the Tribunal concludes an application challenging the legality of an individual decision is well-founded, “it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision.” (para. 140)
- The Tribunal categorizes remedial powers into three categories:
  - (i) rescission of the contested decision, together with measures to correct effects via monetary compensation or specific performance;
  - (ii) compensation for intangible injury resulting from procedural failure in the taking of a sustainable decision; and
  - (iii) compensation to correct the effects of intangible injury consequent to the Fund’s failure to act in accordance with legal obligations where there may be no decision to rescind.
  - The Tribunal has had occasion to compensate applicants for “intangible injury” in all three categories. (para. 141)

### Tribunal’s remedial determinations in this case
- The Tribunal concluded:
  - Rescission of the decision denying Applicant a pre-screening interview is not practicable. (para. 143)
  - Granting Applicant (i) “internal” status for future applications or (ii) “incumbent” status for future applications substantially resembling her limited-term position is not necessary to correct the effects of the Fund’s abuse of discretion; Applicant had multiple opportunities to seek further employment and was granted pre-screening interviews for other vacancies she applied for within the Department, and she did not apply for the reclassified vacancy after leaving active employment. (para. 143)
- Appropriate remedy chosen:
  - The Tribunal determined the appropriate means to correct the effects of the Fund’s breaches of rules and Applicant’s legitimate expectations is monetary compensation for intangible injury. (para. 144)
  - Rationale: intangible injury ordinarily arises when the Fund “fails through inaction to discharge a duty imposed by its written law or by general principles of international administrative law, such as the obligation to take decisions in accordance with fair and reasonable procedures.” Compensation for intangible injury responds to staff members’ legitimate expectations that the Fund will act in accordance with the rule of law. (Ms. “GG” (No. 2), para. 445; cited in para. 144)
  - The Tribunal recognizes intangible injury is difficult to quantify and does not require applicants to offer proof of harm; its approach is to “identify the injury and assess its nature and severity, giving due weight to factors that may either aggravate or mitigate the degree of harm to the applicant.” (Ms. “GG” (No. 2), para. 446; para. 145)
  - Where an applicant succeeds in a challenge to the integrity of a selection process and was an unsuccessful candidate, some measure of injury is incurred; entitlement to relief follows from standing to raise denial of fair treatment even without proving best-suited candidacy. (D’Aoust (No. 2), para. 64; para. 146)

*IMF Administrative Tribunal judgment in Applicant v. International Monetary Fund (paras. 118–146).*

### 147. Here, the essence of the harm is found less in the loss of an opportunity and more in the

### Administrative Tribunal Decision — Ms. “NN” (IMFAT) — Compensation and Costs

### Finding on harm and compensation for intangible injury
- Essence of the harm: breach of Applicant’s expectation of fair treatment rather than loss of an opportunity.
- Specific obligations breached:
  - To treat Applicant as any other Department staff member seeking to apply to a Department vacancy for which she met minimum eligibility requirements, i.e., to afford her a pre-screening interview irrespective of the likelihood of her ultimate success in the competition.
  - To give Applicant timely notification that her candidacy would not go forward, i.e., of her non-selection for the shortlist by virtue of the denial of the pre-screening interview.
- Aggravating and mitigating circumstances:
  - Aggravating: the decision was a considered choice and the surrounding circumstances raise questions as to the reason for the decision.
  - Mitigating: evidence that Applicant had a relatively slim likelihood of success in the application for the vacancy.
- Compensation set to correct the effects of the Fund’s failure to afford a pre-screening interview and to notify Applicant: $7,500.

### Legal fees and costs — requests, principles, and award
- Governing provision: Article XIV, Section 4, of the Statute (authorizes ordering that reasonable costs incurred by the applicant, including counsel, be totally or partially borne by the Fund, taking into account nature and complexity of the case, nature and quality of the work performed, and amount of the fees in relation to prevailing rates).
- Applicant’s submissions:
  - Submitted amount and supporting documentation with the Reply; submitted a Supplementary Request for Costs on November 20, 2017.
  - Seeks legal fees and costs totaling $33,867.83, of which $684.84 (invoice covering September 2017) relates to a complaint not considered by either the Grievance Committee or the Tribunal.
  - Requests reimbursement of all fees and costs incurred “in this litigation, including for the Grievance Committee stage.”
- Respondent’s submissions:
  - Asks application of a principle of proportionality so any fee award “fairly represents the extent to which the Applicant prevailed on her claims for relief, and the effort associated with the building [of] the record for any such claim.”
  - Asserts the case did not pose complex legal questions or require development of a complex factual record and objects to fees relating to a complaint not considered by either the Grievance Committee or the Tribunal.
- Applicable Tribunal principles:
  - Compensable fees and costs include representation in channels of administrative review that must be exhausted before filing with the Tribunal.
  - A “measure of proportionality” applies based on degree of an applicant’s success in context of total claims.
  - No legal relationship between amount of compensation awarded for substantive relief and the costs of legal representation.
  - Tribunal may award attorney’s fees and costs for proceedings antecedent to the Tribunal’s review; where applicant prevails in part, Tribunal weighs “relative centrality and complexity” of claims and their “ultimate disposition.”
- Tribunal’s assessment in this case:
  - Applicant prevailed on chief complaint (abuse of discretion in denying pre-screening interview and failure to notify) but the abuse had little material consequence.
  - Applicant’s counsel expended considerable time on several non-meritorious claims.
  - Applicant raised a significant issue about coherence in remedial measures provided by the Fund’s dispute resolution system.
  - Purpose of Article XIV, Section 4, includes cost-shifting in favor of prevailing applicants to increase access to the Tribunal.
- Award:
  - Tribunal awards 50 percent of total legal fees and costs incurred by Applicant in this case after excluding fees and costs incurred in relation to a complaint not considered by the Grievance Committee or Administrative Tribunal.
  - That sum is $16,591.50.

### Formal decision (orders)
- The Administrative Tribunal of the International Monetary Fund unanimously decides:
  1. Ms. “NN” prevailed on her claim that the Fund abused its discretion when it decided not to afford her a pre-screening interview—thereby excluding her from the competition for the vacancy—in contravention of Departmental vacancy selection guidelines and individual assurances that she could apply for vacancies for which she met the eligibility criteria. The Fund also failed to notify Ms. “NN” that she had been excluded from the competition.
  2. For these breaches of the Fund’s rules and her legitimate expectations, Ms. “NN” is awarded $7,500 as compensation.
  3. The following additional complaints of Ms. “NN” are not sustained:
     - that the Fund abused its discretion in accepting the Grievance Committee’s recommendation not to award Ms. “NN” relief after the Committee found procedural faults in the vacancy selection process;
     - that the Fund was required to provide Ms. “NN” special consideration in her job search in light of the Departmental reorganization; and
     - that Ms. “NN” was subjected to abusive written comment to which managers failed to respond.
  4. The Fund shall pay Ms. “NN” $16,591.50, being 50 percent of the total amount of legal fees and costs incurred by Ms. “NN” in this case (after excluding legal fees and costs incurred in relation to a complaint not considered by either the Grievance Committee or Administrative Tribunal).

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_Source: https://www.imf.org/-/media/files/imfat/j2017-2.pdf_