## Mr. “OO”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2019-2 (December 17, 2019) ## Source details **Canonical URL:** [Mr. “OO”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2019-2 (December 17, 2019)](https://www.imf.org/-/media/files/imfat/j2019-2-summary.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2019-2-summary.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2019-2-summary.pdf.json) --- ### Legal and procedural framework - Governing Fund law during the relevant period: GAO No. 3, Rev. 7, and the Guidelines for Conversion of Fixed-Term Appointments. - Conversion of a fixed-term appointment required satisfaction of three criteria: (a) the appointee meets “performance” requirements, (b) the appointee demonstrates “career potential” with the Fund, and (c) there is a “staffing need” on the part of the Fund. - Applicant was recruited through the Fund’s B-Level Diversity Hiring Initiative (the Initiative), which provided central funding for a limited number of three-year, fixed-term B-Level appointments for candidates from underrepresented regions; the central funding covered the cost to a department of employing an Initiative recruit for three years in a position not part of the department’s FTE complement. ### Issues considered by the Tribunal - Whether recruitment through the Initiative constrained the Fund’s discretionary authority to base a non-conversion decision on lack of “career potential” or lack of “staffing need.” - Applicable standard of review where non-conversion is based on failure to demonstrate “career potential” despite meeting “performance” requirements. - Whether the Fund abused its discretion in (a) assigning work that afforded a fair opportunity to demonstrate “career potential” and (b) providing adequate notice of shortcomings that could figure in the assessment of “career potential.” - Whether the non-conversion decision was motivated by bias or discrimination. - Whether the Fund treated the Applicant fairly in relation to his appointment under the Initiative, given the Initiative’s stated purposes. ### Tribunal findings on discretionary authority and standard of review - The Tribunal concluded that recruitment through the Initiative did not constrain the Fund’s discretionary authority under Fund law, nor did it create an enforceable expectation that would prevent the Fund from applying the usual conversion criteria. - Distinction between “performance” and “career potential”: - “Performance” is a backward-looking assessment and is reviewable under standards applicable to performance-based decisions. - “Career potential” requires managerial projection of the individual’s likely future contribution and is entitled to a considerable degree of deference by the Tribunal as it involves managerial expertise and institutional knowledge (Para. 142). - Where assessment of “career potential” relies in part on past “performance,” that aspect is reviewable; projections about future contribution receive deference. ### Application to Applicant’s case: abuse of discretion and notice - The Tribunal found that: - Applicant’s fixed-term performance monitoring identified a pattern of shortcomings relating to competencies in managerial leadership and initiative. - Managers were within their discretionary authority to conclude that Applicant’s “career potential” fell short of that required for conversion, despite Applicant’s “performance” being within the “Effective” range. - The Fund did not abuse its discretion in taking the non-conversion decision on the ground that Applicant did not demonstrate “career potential.” - On adequate notice: - The Tribunal held that what is important is that the fixed-term appointee be given notice (a) of observed shortcomings and (b) that these may figure in the decision whether the appointment will be converted to open-ended status (Para. 169). - The Tribunal found that such notice had been given to Applicant. ### Findings on bias/discrimination - The Tribunal decided that Applicant had not established that the non-conversion decision was improperly motivated by bias or discrimination. ### Fair treatment under the Initiative and managerial obligations - The Initiative’s purpose, as explained by the Fund, was to “provide top candidates entrée to the Fund from which they could learn the institutional culture, build networks, and make themselves more competitive for B-Level vacancies as they arose.” - Differences from usual fixed-term appointments: Initiative funding covered a three-year term without provision for continuation of the position thereafter. - Supervisors’ usual responsibilities—providing “suitable assignments, clear expectations, appropriate guidance, and timely feedback” (Guidelines for Conversion of Fixed-Term Appointments)—were heightened by the Initiative’s design and the obligation to “facilitate . . . integration” of Initiative recruits into the Fund. - The Tribunal found managerial lapses in integrating Applicant into Department work after the departure of the senior official who had championed his recruitment; the successor did not initially demonstrate support for incorporating Applicant’s work program. - The Tribunal concluded that the purposes of the Initiative and fairness to Applicant required proactive measures by the new manager to support Applicant’s success; managers failed in that obligation. - Result: the Fund failed to treat Applicant fairly in relation to his appointment under the Initiative, given the Initiative’s purposes. ### Remedies awarded - The Tribunal awarded compensation to correct the effects of the intangible injury consequent to the failure of fair treatment. - Compensation amount: the sum equivalent to nine months of Applicant’s salary at the time of the lapse of his fixed-term appointment. - Legal fees and costs: the Tribunal ordered the Fund to reimburse Applicant fifty percent of the total amount of his legal fees and costs. - Because the Tribunal sustained the non-conversion decision on lack of “career potential,” it did not find it necessary to rule on whether lack of “staffing need” could independently sustain the decision. --- _Source: https://www.imf.org/-/media/files/imfat/j2019-2-summary.pdf_