## JUDGMENT No. 2019-2 (j2019-2) ## Source details **Canonical URL:** [JUDGMENT No. 2019-2 (j2019-2)](https://www.imf.org/-/media/files/imfat/j2019-2.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2019-2.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2019-2.pdf.json) --- ### Case and Panel - Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2019-2: Mr. “OO”, Applicant v. International Monetary Fund, Respondent. - Tribunal composed pursuant to Article VII, Section 4 of the Tribunal’s Statute: Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Jan Paulsson. - Applicant represented by Ms. Marie Chopra, James & Hoffman, PC. - Respondent represented by Ms. Diana Benoit and Ms. Juliet E. Johnson, Senior Counsels, IMF Legal Department. - Decision date and place: Washington, D.C., December 17, 2019. ### Procedural timeline and key dates - Applicant filed Application: June 16, 2017; transmitted to Respondent: June 23, 2017. - Registrar circulated notice summarizing issues: June 26, 2017 (Rule IV, para. (f)). - Respondent filed Answer: August 7, 2017. - Tribunal preliminary decisions notified: August 23, 2017 (anonymity granted; production requests denied; requests to Respondent issued). - Respondent’s Response to Tribunal’s requests: September 6, 2017. - Applicant filed Reply: November 6, 2017. - Fund’s Rejoinder: December 7, 2017. - Applicant filed Administrative Review request to HRD Director: January 5, 2016; HRD Director declined: February 18, 2016. - Applicant filed Grievance with the Fund’s Grievance Committee: April 11, 2016. - Grievance Committee Report and Recommendation (deny Grievance): March 21, 2017. - Fund Management accepted Grievance Committee recommendation: April 24, 2017. - Applicant filed with Tribunal: June 16, 2017. ### Recruitment, appointment and the B-Level Diversity Hiring Initiative (context) - Initiative objective announced November 2010: recruit external candidates from underrepresented regions to reach benchmark of 22 percent for share of senior staff from underrepresented regions by 2014. - Central funding provided for limited number of three-year, fixed-term B-Level appointments for hires from underrepresented regions. - Initiative mechanics and terms cited in recruitment materials: - Department received budget adjustment equal to salary cost of the external recruit for a 3-year period. - Cost estimate referenced: about $4½ million a year. - HRD intranet notice: Initiative budget provided for “up to four external hires a year (Fund-wide).” - Applicant accepted a Grade B1 Advisor three-year fixed-term appointment funded under the Initiative; recruitment materials described Advisor as “more strategy and projected based” and “of a limited duration – up to 3 years with the expectation of absorption into the department. During that time, you would be able to apply for other positions.” ### Relevant internal law and monitoring guidelines - GAO No. 3, Rev. 7 (May 1, 2003), Section 3.02.1.3: conversion may occur only if staff “meet the performance requirements, demonstrate[] potential for a career at the Fund, and meet[] the Fund’s staffing requirement.” - Guidelines for Conversion of Fixed-Term Appointments (2006) (attached to conditional offer) set monitoring timeline and conversion process: - Objectives setting within first 2–3 months; 6-month Review; First Full Review during APR; Second Full Review during APR; Career Decision Review at the 30th month; End of Fixed-term at 36-month. - At the 30th month HRD reviews department assessment and broader staffing needs and then either offers conversion to open-ended appointment or allows fixed-term appointment to lapse. - Guidelines emphasize a “clearly positive assessment of performance and potential” is required for conversion. - Fixed-Term Monitoring Guidelines confirm decision point at the 30th month and that fixed-term appointees in Grades A1 to B2 have three-year terms not extendable beyond 36 months. ### Principal legal issues addressed by the Tribunal - (A) Whether the B-Level Diversity Hiring Initiative or Applicant’s recruitment terms constrained the Fund’s discretionary authority on conversion. - (B) Standard of review applicable to a non-conversion challenge (abuse of discretion standard). - (C) Whether the Fund abused its discretion in concluding Applicant lacked “career potential.” - (D) Whether lack of “staffing need” independently justified non-conversion. - (E) Whether non-conversion was improperly motivated by bias or discrimination. - (F) Whether Applicant was treated fairly in relation to his appointment under the Initiative. ### Factual summary of assignment, supervision, and performance monitoring - Appointment began late October 2012; fixed-term performance assessed at six-month intervals; conversion decision informed at the 30-month mark. - TOR and revised TOR appended to recruitment materials; both identified a “major project” outside Applicant’s subject-matter branch and a split of responsibilities that Applicant acknowledged as a 50/50 time split between the major project and his area of expertise. - Supervisor 1 (first 16 months) and Supervisor 2 (thereafter) completed formal performance assessments with input from managers in the other branch. - FY2013 APR (July 2013, 6-month assessment): Relative Performance Level rated “Effective”; noted “Comparative Developmental Areas” including driving for successful outcomes. - December 2013 (treated as one-year evaluation): strengths and areas for development noted; third objective—managerial and operational support in Applicant’s subject-matter branch—had not been delivered due to colleagues not engaging him. - FY2014 APR (18-month assessment, July 2014): Relative Performance Level rated “Effective”; identified developmental areas in “Strategic Vision,” “Negotiating and Influencing,” and “Managing Performance of Teams” and linked needed improvements to upcoming conversion decision. - FY2015 Mid-Year Review (December 2014): noted satisfactory progress on the major project. - Department informed Applicant on March 11, 2015 that his fixed-term appointment would not be converted; Draft Non-Conversion Decision checked “Career potential” and “Change in business need.” Final Non-Conversion Decision signed by Applicant on August 10, 2015 referenced lack of “proactive leadership” and concluded no conversion. - Applicant’s three-year appointment lapsed October 2015; Applicant was granted a one-year contractual appointment to facilitate transition. ### Applicant’s core contentions - Non-conversion was arbitrary and grounded in “false” reasons (lack of career potential and change in staffing need) while the real reason was departmental failure to plan for his absorption under the Initiative. - He performed at an “Effective” level and had an enforceable expectation of conversion based on recruitment terms. - He was not given fair opportunity or adequate notice to remedy perceived shortcomings; assignments did not match TOR. - Alleged discrimination: treated less favorably because he was hired through the Initiative and compared unfavorably to other Initiative hires. - Relief sought included rescission of the non-conversion decision; three years’ salary; compensation for pension/retirement losses including Leave Without Pay until early retirement age in 2020; one additional year’s salary for stress and reputational damage; and legal fees and costs under Article XIV, Section 4. ### Respondent’s principal contentions - Initiative and supplementary funding did not alter Fund’s conversion rules; no obligation to “absorb” Applicant. - Non-conversion was a proper exercise of managerial discretion, independently supported by: 1. Lack of “career potential” — managers’ consistent assessments of deficient leadership and managerial competencies for B-Level; and 2. Lack of “staffing need” in Applicant’s Department for a B-Level Advisor at the time of decision. - Applicant received adequate notice and opportunities to remedy shortcomings; non-conversion was not motivated by bias or discrimination. ### Tribunal findings on the Initiative’s legal effect (Issue A) - The Initiative differed from ordinary fixed-term recruitment in two principal respects: - Initiative recruits did not have to compete for an advertised vacancy. - Initiative recruits were hired into positions created using central funding rather than an existing departmental FTE (i.e., not an “ongoing” position). - Recruitment communications referring to an “expectation of absorption” were contextually qualified and did not create an enforceable expectation of automatic conversion absent satisfaction of conversion criteria. - The Fund’s discretionary authority over conversion under GAO No. 3 and the Guidelines was not constrained by Initiative recruitment; conversion required meeting normal criteria (performance, career potential, staffing need). ### Standard of review (Issue B) and Tribunal approach - Non-conversion is a managerial decision reviewable for abuse of discretion: Applicant succeeds only if decision was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” - Tribunal gives considerable deference to managerial assessments of future-oriented “career potential,” while insisting on procedural protections: fair opportunity to demonstrate potential, adequate notice of shortcomings, and reasonable basis for conclusion. ### Tribunal findings on “career potential” (Issue C) - Managers consistently cited deficiencies in leadership, initiative, “strategic vision,” and “negotiating and influencing”; Supervisor 2 stated Applicant “was not a B-level staff member” and “did not have the potential.” - Tribunal concluded: - Applicant’s Fixed-Term performance assessments, though rated “Effective,” contained documented and repeated concerns about managerial competencies that could reasonably support a finding of insufficient “career potential.” - The Fund provided notice of those deficiencies in time for Applicant to attempt remediation (FY2014 APR explicitly linked developmental needs to conversion risk). - Limited early exposure to subject-matter branch work existed (major project consumed most of first year), but the Tribunal found that lack of full initial integration was not dispositive given the record as a whole. - The non-conversion decision on the ground of lack of “career potential” was not an abuse of discretion. ### Tribunal observations on “staffing need” (Issue D) - The Fund advanced lack of a departmental “staffing need” for an ongoing B-Level Advisor as an independently sufficient reason. - Tribunal noted “staffing need” typically arises only if performance and potential criteria are satisfied; having sustained non-conversion on lack of “career potential,” the Tribunal did not determine whether lack of “staffing need” independently sustained the decision. ### Tribunal findings on bias or discrimination (Issue E) - Applicant alleged discriminatory treatment (less favorable than non-Initiative hires and other Initiative hires) and improper motives. - Tribunal found Applicant did not meet burden of proving discrimination or improper motive affecting the non-conversion decision. - Tribunal recognized departments exercised different approaches under Initiative management flexibility; no evidence established that non-conversion was improperly motivated by Applicant’s Initiative recruitment or nationality. ### Tribunal findings on fairness relating to Initiative obligations (Issue F) - Tribunal held Initiative did not create an enforceable right to absorption but required proactive managerial steps to give effect to Initiative purposes (onboarding, integration, mentoring). - Record showed managerial shortcomings that amplified Applicant’s integration challenges: - Departure of the champion who recruited Applicant; successor had not seen Applicant’s TOR and was unprepared to assign substantive B-level work. - Evidence of long delays in finding appropriate assignments and insufficient proactive facilitation. - Tribunal concluded the Fund failed to treat Applicant fairly in relation to his appointment under the Initiative. ### Remedies, compensation, and costs - Remedy entitlement based on procedural/fairness lapse (intangible injury) resulting from managerial failure to give effect to Initiative purposes. - Compensation awarded: - Sum equivalent to nine months’ salary at the time of lapse of Applicant’s fixed-term appointment to correct effects of unfair treatment. - Legal fees and costs: - Fund shall pay Applicant $22,201.08, being fifty percent of the total amount of legal fees and costs incurred by Applicant. - Tribunal applied proportionality to fee award: Applicant did not prevail on chief complaint (abuse of discretion in non-conversion) but prevailed on fair-treatment breach linked to Initiative implementation. ### Final orders (unanimous) - The Fund’s decision not to convert Mr. “OO”’s fixed-term appointment to an open-ended appointment on the ground he failed to demonstrate “career potential” is sustained. - No decision required on whether lack of “staffing need” would also sustain non-conversion. - The Fund failed to treat Mr. “OO” fairly in relation to his appointment under the Initiative. - Compensation: nine months’ salary equivalent and payment of $22,201.08 to Applicant (50% of legal fees and costs). - Judgment signed by Catherine M. O’Regan, Andrés Rigo Sureda, Jan Paulsson; Registrar Celia Goldman. *Administrative Tribunal of the International Monetary Fund, Judgment (Washington, D.C., December 17, 2019).* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Case and Panel - Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2019-2: Mr. “OO”, Applicant v. International Monetary Fund, Respondent. - Tribunal composed for this case, pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Jan Paulsson. - Applicant represented by Ms. Marie Chopra, James & Hoffman, PC. - Respondent represented by Ms. Diana Benoit and Ms. Juliet E. Johnson, Senior Counsels, IMF Legal Department. ### Subject of the Application - Applicant challenges the non-conversion of his fixed-term appointment to an open-ended appointment. - Applicable internal-law criteria for conversion during the relevant period (GAO No. 3, Rev. 7, Section 3.02.1.3 and the Guidelines for Conversion of Fixed-Term Appointments): - Staff member must “meet the performance requirements, demonstrate[] potential for a career at the Fund, and meet[] the Fund’s staffing requirement.” - Conversion depends on: departmental assessment of performance during the fixed-term appointment; individual’s long-term potential for a successful career with the Fund; and the department’s and institution’s staffing needs. - In the contested decision, the Fund concluded Applicant met “performance” requirements but did not meet the criteria of “career potential” and “staffing need.” ### The B-Level Diversity Hiring Initiative (context) - Initiative provided central funding for a limited number of three-year, fixed-term appointments at the B-Level for staff recruited from underrepresented regions. - Central funding covered the cost to a department of employing, for three years, an Initiative recruit in a job that was not part of the department’s complement of full-time equivalent (FTE) positions. - Applicant contends the Initiative’s terms and his recruitment constrained the Fund’s discretionary authority to rely on “career potential” and “staffing need” as grounds for non-conversion. ### Applicant’s principal assertions (summary) - The Fund may not properly ground non-conversion on lack of “career potential” or lack of “staffing need” given the Initiative context; these are “false” reasons, the “real” reason being the department’s failure to “plan for his absorption.” - Applicant asserts he performed at an “Effective” level during the fixed term. - Applicant contends he was not given a fair opportunity to demonstrate suitability for career employment because assignments allegedly did not match the terms of reference (TOR) on which he was hired. - Applicant contends he was not put on notice of alleged shortcomings affecting assessment of “career potential,” nor given an opportunity to remedy them. - Applicant contends the non-conversion decision was discriminatory: treating him differently from staff not hired through the Initiative and less favorably than other Initiative hires. - Relief sought includes: - rescission of the non-conversion decision and removal of related records; - three years’ salary for lost employment; - compensation for losses of pension and retirement benefits, including placement on Leave Without Pay in the Interest of the Fund to continue pension contributions until reaching early retirement age in 2020; - an additional one year’s salary for “appalling stress” and damage to reputation and family; - legal fees and costs under Article XIV, Section 4 of the Statute if the Application is well-founded in whole or in part. ### Respondent’s principal contentions (summary) - Adoption of the Initiative and provision of three-year supplementary funding did not override the Fund’s rules governing conversion of fixed-term appointments. - The Fund was under no obligation to “absorb” Applicant at the conclusion of the fixed term. - The Fund did not abuse its discretion; the non-conversion was grounded on two “equally sufficient and independent” reasons: - Applicant’s lack of “career potential” — supported by managers’ consistent assessments that Applicant lacked the leadership and managerial competencies required at the B-Level. - Lack of “staffing need” for a B-Level Advisor in Applicant’s Department at the time of the non-conversion decision. - The Fund maintains Applicant was given fair notice of perceived shortcomings and adequate opportunity to demonstrate suitability for open-ended employment. - The Fund denies allegations of bias or discrimination based on Initiative recruitment. ### Procedure and key dates - Applicant filed the Application on June 16, 2017; transmitted to Respondent on June 23, 2017. - Registrar circulated within the Fund a notice summarizing the issues on June 26, 2017 (Rule IV, para. (f)). - Respondent filed its Answer on August 7, 2017. - Tribunal issued preliminary decisions notified to the parties on August 23, 2017: - to grant Applicant’s request for anonymity; - to deny Applicant’s requests for production of documents; - to issue a request to Respondent for documents and information. - Respondent submitted its Response to the Tribunal’s request for documents and information on September 6, 2017; that Response and the Fund’s Answer were transmitted to Applicant for Reply. - Applicant filed his Reply on November 6, 2017 after an extension; the Fund’s Rejoinder was submitted on December 7, 2017. ### Anonymity requests and Tribunal approach - Applicant requested anonymity under Rule XXII (Anonymity) of the Tribunal’s Rules of Procedure and sought an “interim order” on anonymity so he could elect to withdraw if anonymity were denied. - Respondent supported Applicant’s anonymity request and additionally asked that Applicant’s managers be afforded anonymity in the Judgment. - Tribunal precedent: Mr. “HH”, IMFAT Judgment No. 2013-4 (October 9, 2013) — Tribunal may grant interim anonymity decisions in appropriate cases to avoid deterring applicants who value anonymity. - Tribunal adopts a “case-by-case approach” to interim anonymity decisions, permitting a decision in advance of the merits where the nature of evidence to be brought out in the Judgment can be assessed without awaiting the merits. - In prior non-conversion and performance-related cases the Tribunal has granted anonymity to protect candor of performance assessment processes (examples cited: Mr. “HH”, Ms. “JJ” IMFAT Judgment No. 2014-1, Mr. “KK” IMFAT Judgment No. 2016-2, Ms. “NN” IMFAT Judgment No. 2017-2). - Applicant asked the Tribunal to follow its practice of granting anonymity in non-conversion cases and cases where a staff member’s performance is at issue. *Judgment of the Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2019-2.* ### 16. Notably, Respondent emphasizes that what is at issue in the instant case is not ### 16. Notably, Respondent emphasizes that what is at issue in the instant case is not ### Anonymity and confidentiality - Respondent supported Applicant’s request for anonymity to protect confidentiality of the performance assessment process. - The Tribunal granted Applicant anonymity because the assessment of Applicant’s “career potential” was contained in the fixed-term monitoring/annual performance review documentation and the Tribunal has previously afforded anonymity where core evidence involves assessment of job performance. Parties were notified on August 23, 2017. - Applicant requested that the Tribunal “to the extent possible, protect from disclosure any factual information which could lead to his identification.” The Tribunal adopted its established approach to be “circumspect” in dissemination of personal information while recognizing its primary obligation to give sufficient reasons for its decision (citing Mr. “LL”, IMFAT Judgment No. 2019-1 (April 5, 2019), para. 23, and Ms. “GG” (No. 2), IMFAT Judgment No. 2015-3 (December 29, 2015), para. 77). - Respondent requested anonymity for “all of the managers who provided candid feedback to Applicant with respect to their assessment of his competencies and potential for success at the Fund.” The Tribunal acceded to that request in accordance with its practice of maintaining anonymity of persons other than applicants (see Ms. “GG” (No. 2), para. 76). ### Applicant’s requests for production of documents (Rule XVII) - Procedural context: - Applicant made five requests for production of documents pursuant to Rule XVII. - For Requests Nos. 2-5, the Fund responded that it had provided Applicant with all emails and other documents responsive prior to the Grievance Committee hearing; the same requests had been included in the Grievant’s Pre-Hearing Statement. - Request No. 1 was made for the first time before the Tribunal; the Fund urged denial on relevance grounds. - Tribunal outcome: - The Tribunal denied each of Applicant’s five requests for production of documents. Parties were notified on August 23, 2017. - Request No. 1 (Vacancy Selection Form for earlier Division Chief (DC) vacancy) - Applicant sought the Vacancy Selection Form for a DC vacancy for which he had unsuccessfully competed prior to his recruitment, to “prove that the Fund deemed him suitable for a B-Level position at the Fund, including for a Division Chief vacancy,” and to reinforce that he should have been seriously considered for Division Chief vacancies in his Department. - The Fund did not dispute that Applicant ranked second in that earlier competition or that, based on the interview and testing, he was “deemed suitable for a B-Level position at the Fund.” The Fund contended the Vacancy Selection Form was not probative of issues in the instant case. - The Tribunal denied Request No. 1 on August 23, 2017, on the ground that the requested document would not be further probative in light of the Fund’s admission that Applicant ranked second and documents already in the record (including Applicant’s human resources test results and recruitment correspondence) supporting that prior suitability. The Tribunal stated the issues concern assessment of Applicant’s “career potential” during his fixed-term appointment and the Fund’s “staffing need” at the time of the non-conversion decision. - Request No. 2 (Guidelines before October 2012 concerning recruitment through the B-Level Diversity Hiring Initiative) - Applicant sought “[a]ll documents dated before October 2012 which constitute guidelines given to managers who were considering recruiting staff through the B-Level Diversity Hiring Initiative and/or the extent to which such hires were expected or required to compete for open positions.” - Applicant argued such documents would demonstrate whether the Fund met obligations to provide guidance (e.g., equal opportunities, mentoring, recognition of diversity benefits) or whether no such documents existed. - The Fund responded it did not have “so-called ‘guidelines’ regarding recruitment of staff under the Diversity Hiring Initiative, because . . . these individuals were recruited as regular fixed-term appointees,” and included background materials relating to the Initiative. - The Tribunal denied Request No. 2 on August 23, 2017, because Applicant had not proffered evidence suggesting the Fund possessed responsive documents. - Request No. 3 (Documents May 2011–October 2012 re: business needs of Applicant’s Department that resulted in recruitment) - Applicant sought documents to assess whether business needs had changed at time of non-conversion or whether that was a fabricated justification. - The Fund stated it had provided “all documents and communications regarding the development of the Terms of Reference for the B-Level Advisor position, which established the business need for this role.” - The Tribunal denied Request No. 3 on August 23, 2017, because Applicant had not proffered evidence suggesting additional responsive documents existed in the Fund’s possession. - Request No. 4 (Documents October 29, 2012–July 15, 2015 discussing or estimating Applicant’s career potential) - Applicant sought “[a]ll documents, including but not limited to emails, memoranda, notes of meetings or telephone conferences, or correspondence, dated between October 29, 2012 and July 15, 2015, which discuss or estimate [Applicant’s] career potential at the Fund. If no such documents exist, the Fund should so state.” - The Fund responded that the determination that Applicant lacked “career potential” was based on “managerial assessments of his leadership and strategic competencies that were conducted during the Fixed-Term Monitoring Process” and that it had provided “all documentation, both informal (email communications) and formal assessments reflecting Applicant’s lack of career potential.” The record includes documentation of Applicant’s fixed-term monitoring process. - The Tribunal denied Request No. 4 on August 23, 2017, concluding Applicant had not proffered evidence that additional responsive documents existed. - Request No. 5 (Documents demonstrating change in business needs making Applicant ineligible for conversion) - Applicant sought “[a]ll documents which discuss or demonstrate the change in business needs which made [Applicant] ineligible for conversion to a regular open-ended position in the Fund, including information on the specifics of the change(s) and the date(s) of such change(s).” Request also stated: “If no such documents exist, the Fund should so state.” - The Fund responded it had “provided Applicant all documents and communications that addressed the lack of a staffing need for a B-Level Advisor in his position at the time” and that the point was addressed in testimony before the Grievance Committee. - The Tribunal denied Request No. 5 on August 23, 2017, because Applicant had not proffered evidence suggesting additional responsive documents existed. ### Tribunal’s requests to Respondent (issued August 23, 2017, under Rule XVII, para. 3) - The Tribunal requested additional documents and information deemed useful to consideration of the case: 1. Any additional documents that governed the fixed-term appointment and conversion process during Applicant’s employment; whether the Fixed-Term Monitoring Guidelines (referred to in Mr. “HH” v. IMF, Judgment No. 2013-4, para. 88) governed during Applicant’s employment, and if so, to provide them. 2. Explanation and any additional documents showing the Fund’s policies and practices governing recruitment through the B-Level Diversity Hiring Initiative to the extent these differed from recruitment policies and practices generally. 3. With respect to Applicant’s opportunity for conversion: whether the requirement that Applicant compete for a new position for conversion (a) differed from policies and practices applied to others recruited through the Initiative and (b) differed from policies and practices applied to other fixed-term staff members generally. - The Fund submitted its Response on September 6, 2017; that submission was transmitted to Applicant for his Reply. ### Oral proceedings - Article XII of the Tribunal’s Statute authorizes the Tribunal to decide whether oral proceedings are warranted; Rule XIII, para. 1, provides such proceedings shall be held if the Tribunal deems them useful. Neither party requested oral proceedings. - The Tribunal had the transcript of oral hearings held by the Fund’s Grievance Committee, at which Applicant and eight (current and former) senior officials of his Department testified. The Tribunal is authorized to weigh the Grievance Committee record as an element of evidence (citing Mr. M. D’Aoust, IMFAT Judgment No. 1996-1 (April 2, 1996), para. 17). - In view of the written record and absence of any request, the Tribunal decided oral proceedings would not be useful to disposition of the case. ### Factual background — The Fund’s B-Level Diversity Hiring Initiative - The B-Level Diversity Hiring Initiative (Initiative) was announced to staff in November 2010 with a key objective to recruit external candidates from underrepresented regions by offering departments specialized funding from central resources for a limited time. - In a Message to staff of November 3, 2010 on “Measures to Increase Diversity at the Fund,” the Deputy Managing Director noted the Fund still had “some way to go to meet the benchmark of 22 percent for the share of senior staff from underrepresented regions by 2014 (namely, Africa, East Asia, the Middle East, and Transition Countries).” - Measures announced included: strengthened career development support and additional budget for external hires to level the playing field and maximize the potential of existing staff to advance to senior levels and to facilitate recruitment of top-quality external candidates. - A Memorandum from the HRD Director to the Deputy Managing Director, “Measures to Improve Diversity at the Fund,” October 18, 2010, recommended a two-pronged strategy: (i) maximize potential of internal diverse candidates for advancement to the B-level, and (ii) strengthen external recruitment of B-level staff from underrepresented regions. - Proposed specific measures included: - Shortlisting of diverse staff by including at least one “competitive diverse candidate” (a national of an underrepresented region or a woman) in shortlists for A15-B3 vacancies. - Strengthened career development support (pilot mentoring program and enhanced feedback from the Review Committee and hiring departments to shortlisted but unsuccessful candidates). - Additional budget for external hires. - Strengthened external sourcing capacity (expanding HRD sourcing capability to maintain a pipeline of B-level candidates from underrepresented regions). - Central undertaking that provided budgetary resources to hire Applicant on a three-year fixed-term appointment: - “Additional budget for external hires. This measure is designed to provide an incentive to hiring departments, facilitate the recruits’ onboarding and integration, and mitigate the impact on promotion prospects of internal non-diverse staff (since, with additional slots for the external recruits, more internal staff can still be promoted into ‘regular’ vacancies). A department that recruits a B1-B3 staff from an underrepresented region will receive a budget adjustment for the FTE [Full Time Equivalent] cost, for a period of 3 years. The cost would be about $4½ million a year . . . . The budget would be distributed on a first-come/first-serve basis to the hiring departments, based on the date of the vacancy selection submitted to the RC/SRC [Review Committee/Senior Review Committee].” - An HRD intranet notice explained the Initiative budget provided for “up to four external hires a year (Fund-wide).” - The program worked such that a “department that recruits a B1-B3 staff [member] from an underrepresented region will receive an additional B-level position, with a corresponding budget adjustment equal to the salary cost of the external recruit, for a 3-year period.” *Source: IMF Administrative Tribunal materials (IMFAT), August–September 2017 and supporting Initiative documents.* ### 49. Applicant, a national of a country underrepresented among the Fund’s staff, came to the ### j2019-2 - 49. Applicant, a national of a country underrepresented among the Fund’s staff, came to the ### Recruitment offer, grading, and conditions - Applicant applied as an external candidate for a Division Chief (DC) vacancy and ranked second in the competition. - Senior Department officials proposed two options: - (i) Grade A15 Deputy Division Chief (DDC) position (deputy to the DC vacancy). - (ii) Grade B1 Advisor position in the Department’s Front Office, to be created and funded through the B-Level Diversity Hiring Initiative. - The recruitment letter explained: - Grade A15 (DDC) and Grade B1 (Advisor) would not differ in remuneration due to the Fund’s salary structure. - The “real difference” would be in job content and “some difference in tenure as well.” - DDC described as “operational”; Advisor described as “more strategy and projected based.” - Selection differences: - Appointment to the DDC post would require competition (though “would not require any additional interviews or tests” for Applicant). - Appointment to the Advisor position would not be subject to competition but required submission of a request to the Fund’s Review Committee for managerial appointments. - Tenure and absorption expectations: - DDC position described as “ongoing” after a probationary period of 3 years (standard for Fund staff appointments). - Advisor position described as “of a limited duration – up to 3 years with the expectation of absorption into the department. During that time, you would be able to apply for other positions.” - Applicant accepted the Advisor position (Grade B1), a three-year fixed-term appointment. ### Role of diversity initiative and departmental objectives - The Advisor position was funded from a “special resource pool created to increase the IMF’s amount of diverse B-Level staff at the leadership levels.” - The SPM’s memorandum to the Review Committee titled “B Level Diversity Hire” referenced the HRD Director’s Memorandum of October 18, 2010, “Measures to Improve Diversity at the Fund,” and stated the Department sought to “access the provision made by the Fund to reach our B level diversity benchmarks by 2014.” - The SPM identified Applicant’s subject-matter expertise and years of managerial experience outside the Fund as supporting factors. - The SPM asserted Applicant had “great breadth and depth of leadership experience” based on the human resources assessment tool completed for the earlier DC vacancy, including “adaptability, motivating performance as well as negotiating and influencing” and “impressively high leadership capabilities.” - The SPM’s memorandum forecasted: “We expect to have a vacancy at the division chief level in the next 20 to 30 months. Thus prospects for absorption are encouraging…” ### Terms of Reference (TOR) revision and actual job content - Initial TOR and revised TOR were appended to recruitment materials. - SPM described the revised TOR as making “some minor but fundamental changes,” emphasizing Applicant’s primary role in his area of expertise and shifting projects toward implementation of the strategic plan rather than conceptualization. - Comparative analysis in the record found the “revised” TOR changes amounted largely to a reversal in paragraph order; both original and revised TOR: - Indicated the Advisor position would support projects under both the Department Director and the senior official overseeing Applicant’s area of expertise. - Stated the “major project under his portfolio” would be mostly outside Applicant’s specialty area. - Applicant acknowledged in testimony that the Advisor responsibilities represented a “50/50 split” between the major project (outside his specialty) and assignments in his area of expertise, and that he was told to view the role as an opportunity to expose abilities across both sides of the Department. ### Announcement, transparency, and internal reaction - Prior to Applicant’s arrival, SPM announced the appointment department-wide, identifying Applicant’s nationality and stating recruitment was the “result of the successful outcome of our participation in the Fund’s B-Level Diversity Program,” which “offers central Fund resources specifically for external hires from any of the four underrepresented regions.” - Announcement highlighted Applicant’s “global field and managerial experience” and specified two areas of major focus: the “major project” and another area. - SPM testified she aimed for transparency about the Initiative; after the announcement, staff questioned the need for the job, with some managers reporting that staff thought “it wasn’t a real job.” ### Placement, reporting lines, and supervision - The Department had two broad areas of responsibility, each led by a different senior official; the organizational chart depicted the Front Office Advisor position as residing between the two branches. - Applicant was assigned to perform duties in both branches and support both the Department Director and the senior official for Applicant’s area of expertise. - From a personnel perspective Applicant reported through the ladder leading to the Department Director. - For assignments in Applicant’s subject-matter area, managers from that branch supervised the work. - Formal performance assessments were completed by supervisors reporting to the Department Director (“Supervisor 1” for first 16 months; “Supervisor 2” thereafter), with input from managers in the other branch. - The senior official who had been instrumental in recruitment retired before Applicant’s start; the incoming senior official testified she had not seen Applicant’s TOR and was unaware of any expectation of absorption at the end of the fixed term, leaving uncertainty about Applicant’s assignments and purpose in that branch. ### Performance monitoring and first-year assessments (timeline and findings) - Appointment commenced in late October 2012. - As a three-year fixed-term staff member, performance was assessed at six-month intervals, culminating in a conversion decision at the 30-month mark. - Performance assessment schedule: July (Annual Performance Review (APR)) and December (Mid-Year Review) each year; 6-month assessments used for Fixed-Term performance monitoring. - June 2013: Supervisor 1 requested better integration of Applicant into the Department’s subject-matter side, noting he could not spend the amount of time with Applicant that would be ideal. - July 2013 (FY2013 APR, 6-month assessment): - “Comparative Strengths”: good managerial qualities in a number of areas, “good communication skills,” ability to “gather and integrate facts from varied sources” and “bring to bear his analytical skills.” - “Comparative Developmental Areas”: advised to focus on “driving for successful outcomes” and “being diligent in achieving agreed upon milestones.” Supervisor 1 concluded: “I have every confidence that [Applicant] is capable of delivering in this regard.” - “Relative Performance Level” rated “Effective.” - December 2013 (FY2014 Mid-Year Review, treated “more as a one year evaluation”): - “Strengths”: collegial style effective in building relationships; solid analytical abilities in both familiar and new areas. - “Areas for development”: reticence to “jump in where others have greater seniority or more history with a project”; recommendation to “assert himself and his ideas” and “find additional ways to exhibit his oral and written capabilities.” - Objective performance: - Solid progress on first two objectives (both related to the major project, which was Applicant’s primary focus and consumed the “majority of his time”). - Third objective—to “provide managerial and operational support throughout the reporting period” (work in Applicant’s subject-matter branch)—had not been delivered as originally hoped because colleagues in that branch “have not engaged him in specific and deliverable assignments.” Supervisor 1 indicated efforts to rectify this for the remainder of FY14. - Applicant expressed dissatisfaction with his role during the first year; dissatisfaction increased in the second year. ### Allocation of conversion and supervisory responsibility - Formal responsibility for the non-conversion decision was allocated in the same manner as performance assessments: supervisors reporting to the Department Director with input from the other branch. - The incoming senior official’s lack of involvement in recruitment and lack of awareness of absorption expectations created managerial and assignment ambiguity, and she reported frustration at having “inherited something” she was not party to and having to develop initiatives “that had enough substance for a B level person to be in charge of.” *IMF Grievance Committee report (j2019-2).* ### 75. During Applicant’s second year, managers in the branch of the Department that oversaw ### During Applicant’s second and third year — assignment dispute, performance reviews, and non-conversion decision ### Dispute over proposed assignment and reporting line (Fall 2013 — Spring 2014) - In fall 2013 Applicant expressed dissatisfaction at not receiving assignments in his area of expertise as set out in his TOR; on November 4, 2013 he requested a “meeting . . . at the earliest possible to clarify my role and agree on the assignments I will be working on [in that area].” - By September 2013 two proposed assignments originating from the branch focused on Applicant’s subject matter expertise had been circulated; one became the subject of prolonged controversy through winter 2013–2014. - On March 14, 2014 Applicant emailed the deputy of that branch (copying the senior official and Supervisor 2) asserting he was “being asked to endorse and assume responsibility for decisions that were not thoroughly vetted and that are against professionalism and . . . best practices,” and objecting that the proposed reporting line “was not in accordance with my terms of reference and does not give me the autonomy and independence required for working with all stakeholders.” - Managers viewed Applicant’s expressions of dissatisfaction as surprising and problematic; a deputy characterized Applicant’s choice of words (including “against professionalism”) and resistance to the proposed reporting relationship negatively. - Managers considered the disputed assignment to offer visibility and a “critical task” to showcase Applicant’s skills; the deputy contended the decisions were “vetted and in fact developed in cooperation with the consultant who was actually top notch in that area.” - The senior official characterized Applicant’s objections as a “philosophical disagreement” and acknowledged that Applicant’s participation “would’ve added more,” but concluded that the discord—particularly over the reporting relationship—made pursuing Applicant’s involvement impractical. - Outcome: managers decided Applicant would not be involved in the disputed project and an alternate assignment was provided from that side of the Department. ### Application for DC position (March 2014) - Two DC vacancies arose during Applicant’s fixed term. - In March 2014 Applicant applied for one DC vacancy less than eighteen months into his fixed-term appointment and was not shortlisted. - Applicant did not apply for the second DC vacancy; he testified that the senior official and his direct supervisor indicated he did not “stand a chance” of being selected because he lacked the relevant professional background. ### FY2014 18-month performance assessment (July 2014) — Drafting disputes and final language - In February 2014 Supervisor 1 retired; Supervisor 2 assumed personnel responsibility for Applicant and completion of performance appraisals. - The SPM contacted HRD stating Applicant was “not doing well at all” and sought guidance on communicating Department concerns about conversion to open-ended status in the FY2014 APR. - Draft APR language had explicitly linked conversion prospects to improvement: examples included “Looking forward, in order for [Applicant] to become open-ended, he would have to significantly improve and deliver in the areas noted above,” and “Looking forward, especially when considering any conversion decision from fixed term to open ended staff, it will be extremely important for [Applicant] to have demonstrated that he can deliver in the areas noted above.” - Final FY2014 APR tempered the conversion language to: - “Looking forward, [Applicant] needs to improve and deliver in the areas noted above. In particular, he will need to exhibit the leadership to ensure that new issues are resolved as soon as possible. This will require renewed impetus within the [“major project”] program on prioritization of emerging challenges, adapting tactics and new approaches to ensure successful outcomes, and motivating others to achieve desired objectives. [The Department] is providing opportunities for [Applicant] to demonstrate leadership on the [“major project”] program and other initiatives . . . . All of these areas will be important performance inputs for the coming Fixed-Term conversion decision.” - FY2014 APR identified “Comparative Developmental Areas”: “Strategic Vision” (Applicant “adept at identifying issues” but should “work more proactively with others to address issues rapidly and avoid having a pause with progress of the [“major project”].”) and “Negotiating and Influencing” (Applicant should “give greater attention to resolving differences by proposing mutually beneficial solutions and explain how his ideas and proposals meet others’ needs and concerns.”). - Under “Managerial Assessment” for “Managing Performance of Teams”: “[Applicant’s] managerial role requires that he manages delivery of teams that report to different structures with competing demands. He discerns the needs and goals of colleagues and his [“major project”] team members and will greatly benefit from translating this knowledge into a clear sense of purpose and direction for team members, building consensus, and resolving issues.” - Supervisor 2 reported multiple discussions with Applicant who viewed the APR as overly negative; the FY2014 APR rated Applicant’s Relative Performance Level as “Effective.” - On July 25, 2014 Supervisor 2 assigned two work objectives: the [“major project”]; and “managerial and operational support,” and a “Development Objective” to “[i]mprove leadership and managerial skills.” ### FY2015 Mid-Year Review (December 2014) - Supervisor 2’s FY2015 Mid-Year Review (December 2014) noted satisfactory progress on the [“major project”] and discussed the “importance of ensuring nuanced and contextual messaging . . . , including how best [Applicant] could ensure this at the earliest possible stage in any similar future assignments.” ### Non-Conversion decision process and rationale (March — August 2015) - On March 11, 2015, as the 30-month mark of Applicant’s appointment approached, the SPM and Supervisor 2 informed Applicant that his fixed-term appointment would not be converted to an open-ended appointment. - The non-conversion process included Department notification to HRD, drafting of a written Non-Conversion Decision, and finalization in August 2015. - The Department Director stated he was responsible for the decision along with Supervisor 2 and the SPM; senior officials from the other branch provided input but were not “directly involved in that key decision.” - The SPM’s preparation notes for the March 11, 2015 meeting tracked the three criteria for conversion under the Fund’s internal law: - “staffing need”: “Currently there is no assignment in [the Department] to match [Applicant’s] skill sets.” - “performance”: described as “adequate in terms of what [Applicant] was asked to do.” - “potential”: Applicant “did not have ‘developed, blossomed or excelled to the level we expected. We see [Applicant’s] potential here in [the Department] and at the Fund as limited.’” - The SPM’s notes concluded Applicant had “proved not to be competitive” and referenced an unsuccessful application for a Division Chief vacancy. - Specific comments on assignments in the SPM’s notes (later appearing in the final decision) included: on the [“major project”], “[H]e should have demonstrated more initiative on the program and helped to clarify roles and responsibilities in order to reduce friction and ensure better coordination. He has been too reluctant to provide direction when necessary and to get involved in the . . . operations aspects.” On the other-branch assignment: “While the funding approach was eventually approved . . . , he could have led this engagement more vigorously. Finalizing the presentation . . . and getting agreement on the funding required a lot of assistance and guidance from other B level staff in [the Department].” - The SPM notified HRD that the Department’s decision was based on “we have no real position and the performance lacked luster throughout the FT [fixed term]. We looked at 3 criteria: Performance, Staffing Needs & Potential for a Career.” HRD requested documentation “highlighting his performance gaps.” - The Draft Non-Conversion Decision provided four checkboxes as possible reasons: “Performance”; “Career potential”; “Change in business need”; and “Offered but declined appointment.” In Applicant’s Draft Decision, “Career potential” and “Change in business need” were checked. - Applicant objected to checking “Career potential” and argued “I understood that the primary reason for non-conversion of my appointment is due to the unavailability of a position. Therefore, I expect that the checkbox for ‘Change in Business Needs’ will be the only box checked.” He also expressed surprise at critical performance comments he asserted had not been previously raised. - The SPM and Department leadership elected to retain both checked boxes. The SPM proposed language to buttress the “career potential” rationale: “Given [Applicant’s] specialized career stream profile, he has limited opportunities to demonstrate fungibility or find other positions in the Fund. In addition, regarding his potential, despite his effective performance, we did not see initiative or leadership potential to move two grades up in the foreseeable future to the level of an Assistant Director at the B3 [level].” This language was incorporated into the final Non-Conversion Decision. - The final Non-Conversion Decision (signed by Applicant on August 10, 2015) also referenced “missed opportunities to demonstrate initiative” and a lack of “proactive leadership.” - The Department Director summarized the rationale: performance on tasks was “respectable and okay,” potential to “expand responsibility, to – tackle bigger, larger work tasks, lead more people was limited,” and “there was . . . no position at the end of the fixed term. In other words, there was no business need.” He added that project work ramping down reduced the need for B level oversight. *Source: Grievance Committee testimony and Department records from the IMF.* ### 103. Supervisor 2, for his part, explained the non-conversion decision in the following terms: ### j2019-2 - 103. Supervisor 2, for his part, explained the non-conversion decision in the following terms: ### Reasons cited by supervisors for non-conversion - Supervisor 2: Applicant “was not a B-level staff member at the Fund . . . . He did not have the potential.” (Tr. III, 26.) - Specific deficiencies cited: lack of “strategic vision” and “negotiating and influencing.” (Tr. III, 26.) - Supervisor 2: “As a B-level staff member, I think one needs to see the bigger picture and propose solutions . . . . This requires understanding the broader context, connecting the dots between the various stakeholders and incentives and a sort of proactive approach . . . .” (Tr. III, 27.) - Supervisor 2 testified that, with Applicant, he was “providing more guidance than I would ordinarily expect.” (Tr. III, 31.) - Senior official in charge of the area of the Department related to Applicant’s expertise: Applicant had not demonstrated “initiative and leadership that you would expect from a B level person” and therefore “he had not done so.” (Tr. II, 34-35.) - Senior official: department had “no slot, no position vacant, no – nothing” if Applicant were to stay in that area. (Tr. II, 34-35.) - On disagreement over a proposed assignment: Applicant lost an “opportunity to demonstrate what you can do and to put your best foot forward and not – not spending months stewing over the reporting relationship.” (Tr. II, 35.) - Senior official’s deputy: “there was general agreement that he was not delivering at the level that was expected from a B level staff,” notably lacking in leadership qualities. (Tr. II, 116-117.) ### Department staffing, budget, and conversion prospects - It is undisputed that during Applicant’s fixed-term appointment, the Department did not create a new ongoing position for him. - SPM testified the lack of conversion was because of a “change in business needs.” (Tr. I, 129.) - Senior official: if Applicant had met requirements, “there might have been a process to present a proposal to HRD to create a new position,” but she had not been involved in such a situation. (Tr. II, 81-83.) - Department Director (participated in recruitment): from the beginning, he “never envisaged Applicant’s position becoming part of the Department’s FTE positions.” (Tr. II, 216.) - To create a position, Department would have needed a “commensurate amount of work at that level, but we would also have to have the money.” - He noted the “trend . . . for [the Department] in terms of staffing was always downward.” (Tr. II, 190.) ### Conclusion of fixed-term appointment and performance assessment - August 2015: Following finalization of the Non-Conversion Decision, Applicant received an FY2015 Performance Review. - Under “Comparative Strengths”: “Building collaborative relationships. Establishes good relationships with stakeholders and with staff in other departments . . . .” - Under “Comparative Developmental Areas”: “Advocacy, engagement and influence. Overcoming road blocks by gaining agreement and commitment from others.” - “Overall Assessment” echoed much of the Non-Conversion Decision text. - Applicant’s Relative Performance Level was rated as “Effective.” (Fixed-Term Performance Monitoring/FY2015 APR.) - October 2015: Applicant’s three-year fixed-term appointment was allowed to lapse. - Applicant was granted a one-year contractual appointment to “lighten the blow” and facilitate transition out of the Fund. (Tr. II, 231-232; Tr. I, 55-56.) ### Channels of administrative review and grievance outcomes - January 5, 2016: Applicant submitted a Request for Administrative Review to the HRD Director. - February 18, 2016: HRD Director declined to rescind the non-conversion decision. - April 11, 2016: Applicant filed a Grievance with the Fund’s Grievance Committee contesting non-conversion. - March 21, 2017: Grievance Committee issued its Recommendation and Report, recommending denial of Applicant’s Grievance. - Committee rejected Applicant’s argument that the B-Level Diversity Hiring Initiative altered conversion rules. - Committee concluded evidence supported that Applicant lacked “career potential” with the Fund and therefore did not need to reach the “change in business need” question. - Committee rejected contentions that Applicant lacked notice of perceived deficiencies or opportunity to remedy them. - Committee found no evidence that the decision was influenced by bias, discrimination or improper motive. - Committee observed mismanagement by Applicant’s Department: “long delay in finding an assignment” and lack of responsiveness to Applicant’s request for a mentor or coach. - April 24, 2017: Fund Management notified Applicant it accepted the Grievance Committee’s recommendation denying the Grievance. - June 16, 2017: Applicant filed his Application with the Administrative Tribunal. ### Applicant’s principal contentions (summary) - The non-conversion decision was arbitrary, based on false justifications: changed “staffing need” and lack of “career potential.” - Real reason was Department’s failure under the B-Level Diversity Hiring Initiative to “plan for his absorption” as open-ended staff. - Non-conversion was discriminatory because Applicant was treated differently due to recruitment through the B-Level Diversity Hiring Initiative and less favorably than peers; managers were biased. - Procedural defects: failure to provide fair opportunity to demonstrate suitability for career employment; lack of adequate warning and opportunity to improve; unfair performance assessment; failure to provide career development assistance. - Relief sought: - rescission of the non-conversion decision and removal of related records from personnel file; - three years’ salary for lost employment; - compensation for losses of pension and retirement benefits, including placement on Leave Without Pay in the Interest of the Fund to continue pension contributions until reaching early retirement age in 2020; - an additional one year’s salary for “appalling stress” and damage to Applicant’s reputation and family; - legal fees and costs pursuant to Article XIV, Section 4 of the Statute. ### Respondent’s principal contentions (summary) - Non-conversion represented reasonable managerial discretion, supported by two independent reasons: 1. Applicant lacked “career potential.” 2. Lack of “staffing need” for an ongoing B-Level Advisor position in Applicant’s Department. - Applicant had ample opportunity and timely notice of deficiencies; managers properly concluded lack of “career potential.” - Non-conversion was not motivated by bias nor discriminatory due to the B-Level Diversity Hiring Initiative. - The B-Level Diversity Hiring Initiative did not override Fund internal law governing fixed-term appointments and did not create an obligation to “absorb” Applicant. ### Relevant Fund internal law provisions (as set out in the document) - GAO No. 3 (Employment of Staff Members), Rev. 7 (May 1, 2003), Section 3: - 3.01.1 Regular positions: “Regular positions are for an indefinite period.” - 3.01.2 Term positions: term positions are for a limited period and subject to a sunset clause. - 3.02.1.2: “Before being offered an open-ended appointment, staff shall be hired initially on a fixed-term appointment for a specified period of time to test their suitability for career employment.” - 3.02.1.3: Conversion criteria: “If fixed-term staff members meet the performance requirements, demonstrate potential for a career at the Fund, and meet the Fund’s staffing requirement, their appointment may be converted from fixed-term to open-ended status at the expiration of the fixed-term appointment.” - 3.02.1.4: “Staff recruited to fill senior level positions (Grades B3–B5) shall receive three- to five-year fixed-term staff appointments. After completion of the initial fixed-term appointment, these appointments may be renewed without limit for fixed-term periods up to five years up to mandatory retirement age, or converted to open-ended appointments.” - 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 in the position.” - Guidelines for Conversion of Fixed-Term Appointments (2006) (transmitted to Applicant as attachment to conditional offer): - Intent: new staff are hired on a fixed-term basis for three years; guidelines provide expectations for prospects of conversion. - Conversion depends on: departmental assessment of performance; individual’s long-term potential for a successful career with the Fund; and the department’s and institution’s staffing needs. - Monitoring process timeline: - Within first three months: performance planning discussion. - Six to seven months after planning: feedback session. - Twelfth month: detailed performance assessment; subsequent detailed assessment at least six months later as part of APR cycle; possibly a mid-point assessment. - At thirty-month point (six months before end of fixed-term): detailed assessment to inform career employment decision. - At the thirty-month assessment HRD reviews department assessment and broader institutional staffing needs and then (1) offers conversion to open-ended appointment or (2) allows fixed-term appointment to lapse. Conversion becomes legally binding once HRD issues change of appointment letter. - Human Resources Department, September 2006. *Source: j2019-2 (Fund).* ### 117. The conversion of fixed-term appointments was also governed during the relevant period ### j2019-2 - 117. The conversion of fixed-term appointments was also governed during the relevant period ### Fixed-Term Monitoring Guidelines and Scope - Staff recruited on fixed-term appointments are subject to the fixed-term monitoring process. - HR Teams in departments are available to offer guidance. - Fixed-term staff recruited at Grades B3-B5 or to the Economist Program (EPs) and limited-term appointees, including staff on secondment, are not covered by these guidelines. - Fixed-term appointment for staff in Grades A1 to B2 are for a three-year term and it is not possible to extend fixed-term appointments beyond 36 months 1/. - At the 30th month of the staff member’s appointment, the Fund will make a decision to either convert the staff member to regular status or to let the employment relationship lapse at the end of the fixed-term period. - Career employment decision is based on a combination of several factors: the staff member’s performance, potential for a long-term career at the Fund and staffing needs. - The Fund’s “legal obligation does not go beyond the fixed-term appointment” (per the Guidelines referenced in recruitment materials). ### Fixed-Term Monitoring Process: Objectives, Timing, and Purpose - Specific objectives of the fixed-term monitoring process: - assist managers in evaluating the performance of new staff in their current role and their potential for a long-term career in the Fund; - help new staff perform at Fund standards by ensuring that they receive clear work objectives and structured feedback that helps convey the Fund’s expectations; and - help the Fund in making an informed career employment decision towards the end of the fixed-term period. - Stages, Timing, and Purpose: - Objectives Setting — Within 2-3 months — To enter objectives (under the 6-month Objective Plan in Talent Plus’ Objectives tab). - 6-month Review — 6 months after the hiring date — To document the staff member’s early progress and adjust work objectives, if necessary. - First Full Review — During the regular APR cycle — To provide the staff member with a detailed performance assessment, add or revise work objectives for the coming year and document the staff member’s merit information for performance over the fiscal year. - Second Full Review — During the regular APR cycle — To provide the staff member with a second detailed performance assessment, adjust revised work objectives if necessary, and document the staff member’s merit information for performance over the fiscal year. - Career Decision Review — At the 30th month mark — To arrive at a career employment decision after assessing the staff member’s performance and potential over the full fixed-term period and considering staffing needs. - End of Fixed-term — End of 36-month — Conversion or separation. - Note: As the FT process has been streamlined, the Mid-point Review is no longer required. Departments may use a Memorandum for files to record any performance-related themes at any point. - Footnote: For staff in the Economist Program (EP), see the Clearance for Graduation section under the Performance tab in the EP website. ### Staffing Needs and Mobility Rules - Staffing needs may be influenced by changing skill requirements, reorganizations, staff reduction, outsourcing, or consolidation of functions; such changes may not justify recommending conversion even if performance and potential warrant it. - Fixed-term staff are expected to remain in the same department, and will normally retain the same position, for the duration of the appointment. - Fixed-term staff are eligible to apply for inter-departmental vacancies provided the conversion decision has already been finalized by the department and HRD. - Decision point is no earlier than the 30th-month in the fixed-term appointment; and effective date of appointment is 36 months. - In exceptional cases, reassignment to a different department before conversion may be possible only by offering a new fixed-term appointment and restarting the fixed-term monitoring process; such arrangements require agreement between the staff member and the two departments involved and the endorsement of HRD through TAM. ### Tribunal’s Consideration — Principal Question and Issues for Decision - Principal question for decision by the Administrative Tribunal: - Is Applicant’s challenge to the Fund’s decision not to convert his fixed-term appointment to an open-ended appointment well-founded? - Issues the Tribunal addressed: - (A) Did the B-Level Diversity Hiring Initiative, or the terms of Applicant’s recruitment through that Initiative, constrain the Fund’s discretionary authority under the rules governing the conversion of fixed-term appointments? - (B) What standard of review governs Applicant’s challenge to the non-conversion of his fixed-term appointment? - (C) Did the Fund abuse its discretion in deciding not to convert Applicant’s fixed-term appointment on the ground that he did not demonstrate “career potential” with the Fund? - (D) Did the Fund abuse its discretion in deciding not to convert Applicant’s fixed-term appointment on the ground of lack of “staffing need” on the part of the Fund? - (E) Was the non-conversion of Applicant’s fixed-term appointment improperly motivated by bias or discrimination? - (F) Did the Fund treat Applicant fairly in relation to his appointment under the Initiative, given the purposes of the Initiative? ### Tribunal Findings on the B-Level Diversity Hiring Initiative and Recruitment Terms (Issue A) - Applicant’s contentions: - The Initiative and/or terms of recruitment purportedly pre-determined the conversion criteria (performance, career potential, staffing need) because the hiring Department had to make an up-front commitment to absorb the person to obtain central funding. - Applicant asserted an enforceable expectation of conversion based on an “Effective” performance and the recruitment terms. - Respondent’s position: - Recruitment through the Initiative did not alter the Fund’s discretionary authority to decide conversion under the three criteria: “performance,” “career potential,” or “staffing need.” - The Initiative did not require creation of a position at the conclusion of the fixed term; conditional offer attached the Guidelines for Conversion of Fixed-Term Appointments. - Tribunal’s analysis and conclusions: - The FY2013 Diversity and Inclusion Annual Report’s description of the Initiative did not amend the Fund’s legal framework and was not a decision by Fund Management to change the program’s terms. - The Initiative differed from other fixed-term recruitment in two fundamental ways: - individuals recruited through the Initiative did not have to compete for an advertised vacancy; - Initiative recruits were recruited for positions that could be created using central funding rather than being hired into an FTE position financed by the department’s own budget (i.e., not an “ongoing” position). - Statements in recruitment letters and internal memoranda referring to an “expectation of absorption” were qualified by contextual references (e.g., ability to “apply for other positions”) and did not create an enforceable expectation of automatic conversion absent satisfaction of the conversion criteria. - The Tribunal concluded that the Fund’s discretionary authority to decide conversion was not constrained by Applicant’s recruitment through the Initiative, either as a matter of Fund law or by enforceable expectation created by recruitment communications. - The Tribunal observed an “uneasy fit” between the Initiative’s terms and the usual fixed-term process but reiterated that conversion requires meeting the usual criteria (performance and career potential) regardless of Initiative recruitment differences. ### Standard of Review for Non-Conversion Challenges (Issue B) - Conversion of a fixed-term appointment is an individual managerial decision reviewable for abuse of discretion. - Applicant’s challenge succeeds only if he demonstrates that the non-conversion decision was: - “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) - The Tribunal treats the abuse of discretion standard as flexible and tailored to the nature of each case. - The Fund’s discretionary authority is constrained by principles of fair treatment and the applicable internal law; the Tribunal will pay close attention to the Fund’s own rules regulating that discretion. *Source: Administrative Tribunal decision j2019-2 (Tribunal findings and excerpts of Fixed-Term Monitoring Guidelines).* ### 136. The Fund’s internal law governing during the relevant period provided that the decision ### 136. The Fund’s internal law governing during the relevant period provided that the decision ### Conversion criteria and governing law - The Fund’s internal law (GAO No. 3, Rev. 7 (May 1, 2003), Section 3.02.1.3.) provided that the decision to convert a fixed-term appointment to an open-ended appointment may be taken only if the staff member “. . . meet[s] the performance requirements, demonstrate[s] potential for a career at the Fund, and meet[s] the Fund’s staffing requirement.” - The Guidelines for Conversion of Fixed-Term Appointments (2006) state conversion to open-ended status depends on: - the departmental assessment of the staff member’s performance during the fixed-term appointment; - the individual’s long-term potential for a successful career with the Fund; and - the department’s and institution’s staffing needs. - The Guidelines emphasize there must be a “clearly positive assessment of performance and potential for taking the important step of committing the Fund to providing a career opportunity for the individual.” (Emphasis added.) ### Tribunal precedent and standard of review - Tribunal jurisprudence: a “fixed-term appointee has no entitlement to the continuation of his employment beyond the term of the appointment, and the burden of proof rests squarely with the applicant in challenging a decision not to convert his fixed-term appointment to regular staff.” (Mr. “HH”, para. 97 and cited cases.) - Prior non-conversion challenges have been treated as “performance-based” decisions; determination of adequacy of professional qualifications is “a managerial, and not a judicial, responsibility.” (Ms. “T”, para. 36; Ms. “U”, para. 36; Commentary on the Statute, p. 19.) - The instant case differs: the Fund grounded non-conversion on lack of “career potential” and lack of “staffing need,” despite Applicant meeting “performance” requirements. The Tribunal confronts how to apply the abuse of discretion standard where “career potential” (distinct from past performance) is the principal ground. ### Relationship between “performance” and “career potential” - Fixed-term monitoring: intended to “assist managers in evaluating the performance of new staff in their current role and their potential for a long-term career in t he Fund.” (Fixed-Term Monitoring Guidelines.) (Emphasis added.) - The Tribunal recognizes that: - “Performance” is a backward-looking assessment and reviewable under performance-based standards. - “Career potential” requires projection of future trajectory and involves managerial expertise and institutional knowledge; such projections are entitled to a “considerable degree of deference” by the Tribunal. (Ms. “J”, para. 99.) - Deference may vary with the nature of the decision, contested grounds, and the authority/expertise vested in the decision maker. - When managers decide with deliberation and absence of improper motive, the Tribunal will not substitute its judgment for their considered determination. (Mr. “HH”, para. 96; Ms. “T”, para. 53; Ms. “U”, para. 53.) ### Procedural protections the Tribunal expects when “career potential” is contested - Questions the Tribunal will ask: - Did the Fund provide Applicant with assignments that afforded him a fair opportunity to demonstrate “career potential” with the Fund? - Did the Fund provide Applicant with adequate notice of the alleged shortcomings relevant to assessment of “career potential” and an opportunity to remedy them? - Was there a reasonable basis for the decision that Applicant lacked the requisite “career potential” for conversion? ### Facts and contentions in the instant case - Respondent’s stated rationale (one of two independent grounds): Applicant did not demonstrate “career potential.” - Applicant’s challenges to that rationale: - (i) Recruitment through the Initiative established he had met the threshold potential (the Tribunal dismissed this contention earlier). - (ii) He was not afforded a fair opportunity to demonstrate “career potential,” particularly because assignments allegedly did not match the TOR on which he was hired. - (iii) The Fund did not give adequate notice of alleged shortcomings nor an opportunity to remedy them, including failure to explain the standards for assessing “career potential” and an alleged unreasonable expectation that he show potential to be promoted two grades up from his hiring grade. - (iv) Assessment of his potential was improperly affected by bias by managers and by being hired through the Initiative. - Respondent’s defense: - During his fixed-term appointment Applicant failed to demonstrate the “leadership and managerial competencies” to succeed as a B-level staff member. - The view was “overwhelming and consistent” that Applicant “lacked the leadership, initiative, and collaborative problem-solving skills that are required for success at the B-level at the Fund,” representing collective judgment of several senior managers on several different projects. - Applicant was provided “high profile, complex projects” but “sabotaged” one significant opportunity and failed to show sufficient improvement in others “despite clear and early feedback.” - The Fund advised Applicant nine months prior to the non-conversion decision that the “prospects for conversion were poor, and that he would need to make substantial improvements, which he failed to do.” ### Whether assignments afforded a fair opportunity to demonstrate “career potential” - Applicant’s assertions: - Department did not “provide him with the . . . assignments [in his area of expertise] he had been promised when he negotiated the terms” of his appointment. - He was not given “appropriate opportunities to demonstrate his capability as a B Level manager,” in particular, as a “Division Chief in [his Department].” - “Management’s reluctance to invest him with the appropriate authority made it extremely difficult for [him] to assert himself and to be treated with the respect he needed to carry out his assignments.” - Respondent’s assertions: - Provided “high profile, complex projects.” - Applicant had “a full opportunity to demonstrate his leadership skills on the project that was intended to occupy 50 percent of his time,” namely, the “major project under his portfolio” described in his TOR. - Delay in assignments from the branch reflecting his area of expertise resulted from Applicant’s “intransigence”; discord when a significant project was proposed “demonstrate[ed] [Applicant’s] inability to lead, negotiate, and collaborate.” - Governing guideline: during the fixed term, the “supervisor should endeavor to provide suitable assignments, clear expectations, appropriate guidance, and timely feedback.” (Guidelines for Conversion of Fixed-Term Appointments.) - Mutual objective in the Guidelines: enable the staff member to perform at full capacity as quickly as possible and “provide an opportunity for the staff member to demonstrate potential for the future.” (Emphasis added.) - Tribunal precedent: adequate supervision includes exposure “to the types of tasks which would have been required of him as a permanent employee . . . .” (Ms. “T”, para. 42, quoting Salle v. IBRD, WBAT Decision No. 10 (1982), para. 33.) ### Documentary and testimonial findings on assignments and TOR - The “major project under his portfolio” identified in the TOR did not fall within the branch tasked with work in Applicant’s subject matter expertise; that identification remained the same in the revised TOR Applicant accepted. - SPM described the revised TOR as containing “some minor but fundamental changes,” emphasizing “the primary role of [work in Applicant’s area of expertise] as opposed to the (now secondary) emphasis on responsibilities in other areas of the department.” Nevertheless, the revised TOR continued to identify the same “major project” (outside his subject matter branch) as the major assignment. - Applicant’s testimony acknowledged the Advisor position represented a 50/50 split of his assignments between his area of expertise and other departmental activities: that he “will be working 50 percent of my time on this [“major project”] program, and the other 50 percent will be on [area of expertise] assignments.” (Tr. III, 92.) - Tribunal’s assessment of work allocation and timing: - A question whether assignments beyond the “major project” reflected a 50 percent allocation from the branch relevant to his expertise and when such work commenced. - After review of the record, the Tribunal is persuaded that for at least the first year of Applicant’s three-year appointment his time was dedicated almost exclusively to the “major project.” - The Tribunal must decide whether this fact means Applicant was not afforded assignments offering a fair opportunity to demonstrate “career potential.” ### Evidence Fund recognized need for integration into subject-matter branch - Supervisor 1 raised integration issues early with senior official and deputy of the relevant branch, stating it was “critical” they “integrate [Applicant] more into the workings of the department,” including “regular interaction from the [area of Applicant’s expertise] side of the house.” - At the 12-month review, Supervisor 1 noted Applicant had “. . . not had the opportunity to deliver as he had originally hoped. This is largely because . . . colleagues [in that branch of the Department] have not engaged him in specific and deliverable assignments.” - Applicant complained to managers that he had “not been given assignments that are appropriate for the role for almost a year and a half now” and sought “agreement on all [his] assignments based on the terms of reference against which [he] was employed.” ### Expectations regarding demonstration of capacity for Division Chief (DC) role - During recruitment Department managers indicated the importance of responsibilities consistent with demonstrating capacity for appointment to a DC position; conversion path envisioned DC appointment. - Recruitment letter: “We know you were specifically interested in [area of his expertise] Division Chief position. We expect that another vacancy at that level will arise in the next 12 to 18 months and that you will be a stronger candidate if you have increased exposure to the IMF that either of these two options would afford.” - SPM memorandum: “We believe [Applicant] has the potential to perform in a number of different roles; we expect to have a vacancy at the division chief level in the next 20 to 30 months.” - One senior official expressed concern “that having him work as an advisor will not give use a good handle on his capacity to operate as a Division Chief.” *Source: Tribunal judgment excerpt relating to Fund internal law, Guidelines for Conversion of Fixed-Term Appointments (2006), Fixed-Term Monitoring Guidelines, and Tribunal jurisprudence.* ### 157. The Fund advances the argument that Applicant was “given a full opportunity to ### j2019-2 - 157. The Fund advances the argument that Applicant was “given a full opportunity to ### Major project assignment and opportunities to demonstrate leadership - Applicant was assigned a “major project” intended to occupy 50 percent of his time and described in his TOR as the “major project under his portfolio.” - Applicant was told the assignment was an “opportunity where I can expose my abilities, not just on the [area of his expertise] side of the department, but also on the non-[area of his expertise] side of the department.” (Tr. III, 92.) - Department Director characterized the “major project” as “a very important program for the department, a huge initiative, something . . . that is important for the Fund altogether.” (Tr. III, 92.) - Department testimony linked the ramping down of the major project to decreased need for B level oversight and hence reduced need for Applicant’s continued employment. (Tr. II, 227.) ### Tribunal findings on access to appropriate assignments - Applicant uniquely reported to both sides of the Department; the side aligned with his subject-matter expertise was slow to engage him, delaying the 50/50 work split envisioned by the TOR. - A senior official new to managing that branch was unprepared to assign work “that had enough substance for a B level person to be in charge of.” (Tr. II, 85.) - Tribunal concluded Applicant faced significant challenges in acquiring exposure to assignments most suited to demonstrating B-Level managerial potential. ### Factors mitigating lack of exposure - Applicant opted for an Advisor position entailing a mix of work rather than the DDC vacancy in the branch associated with his subject matter expertise; in accepting the Advisor role he selected a job that was “more strategy and projected based” as opposed to “operational.” (See recruitment letter.) - Shortcomings identified related to managerial acumen (leadership, initiative) rather than lack of subject-matter assignments. - When assignments were provided on his area-of-expertise side, Applicant’s handling of those opportunities was viewed as reflecting adversely on leadership and initiative. ### Tribunal conclusion on fairness of opportunity - The Tribunal concluded that limited opportunity to demonstrate capabilities within the subject-matter branch prior to the non-conversion decision was not dispositive. - On the record as a whole, the Tribunal was not able to conclude that the Fund failed to afford Applicant a fair opportunity to demonstrate the “career potential” required for conversion of his fixed-term appointment. ### Notice of shortcomings and opportunity to remedy - Applicant contended the alleged performance issues were first raised in the Non-Conversion Decision and thus “c[a]me as a complete surprise,” leaving no opportunity to remedy. - Respondent maintained Applicant received “clear and early feedback” and was advised nine months prior to the non-conversion decision that “prospects for conversion were poor, and that he would need to make substantial improvements, which he failed to do.” - The case differed from prior Tribunal challenges because the Fund grounded the contested decision on failure to demonstrate “career potential” (with “staffing need” as a separate ground), not solely on “performance.” ### Differentiation between “performance” and “career potential” - Fixed-Term Monitoring Guidelines: fixed-term monitoring is to “assist managers in evaluating the performance of new staff in their current role and their potential for a long-term career in the Fund.” (Emphasis in original.) - GAO No. 3 and the Guidelines for Conversion of Fixed-Term Appointments identify “career potential” as separate from—and additional to—meeting “performance” requirements. - An “Effective” performance rating may include a broad spectrum of observations and will not automatically satisfy the “career potential” criterion for conversion. ### Evidence of notice in performance reviews - Applicant’s 18-month assessment (FY2014 APR) contained observations tied to managerial competencies: - Strategic Vision: “adept at identifying issues” but advised to “work more proactively with others to address issues rapidly and avoid having a pause with progress of the [“major project”].” - Negotiating and Influencing: advised to “move beyond trying to resolve differences solely through discussing needs and the existence of obstacles . . . give greater attention to resolving differences by proposing mutually beneficial solutions and explain how his ideas and proposals meet others’ needs and concerns.” - Managing Performance of Teams: would “greatly benefit from translating this knowledge into a clear sense of purpose and direction for team members, building consensus, and resolving issues.” - The FY2014 APR explicitly connected these concerns with the upcoming conversion decision, putting Applicant on notice that an “Effective” performance rating did not insulate him from non-conversion. - A Draft FY2014 APR gave Applicant “clear notice of the risk of non-conversion” some eight months before the conversion decision; the final FY2014 APR retained language linking needed improvements to the coming Fixed-Term conversion decision. ### Tribunal assessment of notice adequacy - Tribunal held that the Fund alerted Applicant to observed deficiencies in managerial leadership and initiative and that these could figure in the conversion decision, at a time when Applicant still had opportunity to improve. - Managers’ communications about “performance” necessarily also communicated about “career potential” given the Fund’s fixed-term monitoring process. ### Contested standard for “career potential” - Non-Conversion Decision stated: “[R]egarding his potential, despite his effective performance, we did not see initiative or leadership potential to move two grades up in the foreseeable future to the level of an Assistant Director at the B3 [level].” - Applicant challenged this as an unstated and unsupported requirement; the Fund did not cite any written law prescribing a “two grades up” promotion standard and characterized the language as “shorthand” for showing potential to rise in the ranks. - Tribunal found it not unreasonable for managers to consider the ability to rise in the ranks and handle expanded responsibilities when assessing “career potential.” ### Consideration of Applicant’s response to an offered assignment - Managers considered Applicant’s rejection of a proposed assignment in his area of expertise to be a “missed opportunity” to demonstrate leadership and initiative; the response was viewed as demonstrating “an inability to lead, negotiate, and collaborate with other B-level managers on an important [area of expertise] project.” - Senior official testified the assignment should have been an opportunity to “put your best foot forward” rather than “spending months stewing over the reporting relationship.” (Tr. II, 35.) ### Tribunal’s ultimate findings on notice and basis for decision - Tribunal could not conclude that the performance issues used by the Fund “were raised for the very first time in the Decision itself” or that Applicant had “no opportunity to remedy them.” - Record supports that Applicant was on notice (a) of deficits in managerial leadership and initiative needing improvement and (b) that these shortcomings, while not reducing his rating below “Effective,” placed conversion at risk. _Tribunal decision summarized from the IMF document j2019-2._ ### 182. The ultimate question is whether managers had a reasonable basis for the conclusion that ### 182. The ultimate question is whether managers had a reasonable basis for the conclusion that ### Reasonable basis for conclusion on “career potential” - Managers assessed that Applicant “lacked the requisite ‘career potential’ for conversion of his fixed-term appointment.” - Managers’ testimony emphasized expectations for B-Level staff: - Applicant “was not a B-level staff member at the Fund . . . . He did not have the potential.” (Tr. III, 26, Supervisor 2.) - Important attributes included “initiative and leadership that you would expect from a B level person” which managers found Applicant had not demonstrated. (Tr. II, 34.) - A B-level staff member must “see the bigger picture and propose solutions,” “understanding the broader context,” “connecting the dots between the various stakeholders and incentives” and a “proactive approach.” (Tr. III, 27.) - Managers linked these observations to documented deficits in “strategic vision” and “negotiating and influencing” noted in Applicant’s performance assessments. (Tr. III, 26) - The Tribunal concluded managers reasonably could have found Applicant’s fixed-term performance assessments showed a pattern of shortcomings in managerial leadership and initiative that supported a decision that Applicant lacked career potential. ### Relationship between “performance” and “career potential” - The non-conversion decision was closely tied to assessment of Applicant’s “performance.” - Tribunal findings: - Applicant did not show the Fund failed to provide (a) assignments affording a fair opportunity to demonstrate “career potential” or (b) notice of alleged shortcomings and opportunity to remedy them. - Applicant’s “performance” was deemed within the “Effective” range, yet managers had discretion to determine that his “career potential” was insufficient for conversion. - The Tribunal is “particularly reluctant to second guess managers in their assessment of the senior-level competencies” and respects managerial discretion on precise weighting of assessment areas. ### Applicable standards and managerial deference - Guidelines for Conversion of Fixed-Term Appointments require a “clearly positive assessment of performance and potential for taking the important step of committing the Fund to providing a career opportunity for the individual.” (Emphasis added.) - Where managers decide, with deliberation and absent improper motive, not to convert a fixed-term appointment based on considered determination, the Tribunal will not substitute its judgment for theirs. - Tribunal conclusion: The Fund did not abuse its discretion in deciding not to convert Applicant’s fixed-term appointment on the ground that he did not demonstrate “career potential” with the Fund. ### Staffing need issue (secondary ground) - The Fund asserted lack of a “staffing need” for a B-Level Advisor position in Applicant’s Department as an independently sufficient basis for non-conversion. - Tribunal observation: - “Staffing need” ordinarily will not arise unless the fixed-term appointee has met “performance” and “career potential” criteria. - Having sustained non-conversion on lack of “career potential,” the Tribunal did not decide whether lack of “staffing need” could also sustain the decision. ### Allegations of bias or discrimination - Applicant alleged discrimination based on: - Being treated less favorably than B-Level staff not hired through the B-Level Diversity Hiring Initiative (e.g., assigned a junior-level office, excluded from senior staff meetings, SPM highlighting nationality and Initiative recruitment in announcement). - Being treated less favorably than other staff hired through the Initiative (e.g., required to compete for open-ended position while others were transferred directly to FTE positions). - Non-conversion being motivated by managers’ bias against Applicant, including “personal dislike and false attacks.” - Tribunal findings: - Applicant did not meet his burden of establishing discriminatory working conditions as a consequence of his hiring through the Initiative. - Different departments “took different approaches” under Management’s flexibility for the Initiative; departments had “various options” including transferring the staff member—without competition—to an existing open-ended position, or creating a new position with departmental monies after Initiative funds expired. - Applicant did not establish that “improper motive” (i.e., taking account of factors not relevant to assessment of professional competencies) affected the non-conversion decision. - The decision was reasonably based and taken after Applicant was given a fair opportunity to demonstrate his “career potential.” - Tribunal conclusion: Applicant has not shown the decision was improperly motivated by bias or discrimination. ### Fairness in relation to the B-Level Diversity Hiring Initiative - Purpose of Initiative: address underrepresentation at the B Levels of the Fund of individuals from particular regions. (Memorandum from HRD Director to Deputy Managing Director, “Measures to Improve Diversity at the Fund,” October 18, 2010.) - Two fundamental differences for Initiative recruits: - Hired into a three-year fixed-term Advisor position without competing for a vacancy. - Position was not part of Department’s complement of FTE positions; set to expire with the conclusion of Initiative funding at the end of Applicant’s three-year appointment. - The Initiative’s expectation: funds 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.” - The Fund’s law recognizes the burden on fixed-term appointees required to compete during the fixed term; the “mobility” provision states a fixed-term appointee is “expected to remain in the same department, and will normally retain the same position, for the duration of the appointment.” The provision aims to “avoid staff members on fixed-term appointments not being given adequate time to adapt to the job and establish a suitably high level of performance.” - Tribunal determinations regarding the Initiative: - The Initiative did not create an enforceable expectation that the Fund must “absorb” Applicant (i.e., an onus to convert). - The Fund was required to take proactive steps to give effect to the purposes of the Initiative, given the unusual relationship between the Initiative and the fixed-term appointment process. - Supervisors’ responsibilities under Guidelines for Conversion of Fixed-Term Appointments—providing “suitable assignments, clear expectations, appropriate guidance, and timely feedback”—were heightened for Initiative recruits. - The Initiative’s “additional budget for external hires” was to “facilitate the recruits’ onboarding and integration.” (Memorandum from HRD Director to Deputy Managing Director, “Measures to Improve Diversity at the Fund,” October 18, 2010.) (Emphasis added.) ### Record findings on managerial support and integration - The Tribunal found managerial lapses amplified the challenges Applicant faced as an Initiative recruit: - Following departure of the senior Departmental official who championed Applicant’s recruitment, the successor did not initially demonstrate support for incorporating Applicant into branch work. - The new official testified she had not seen Applicant’s TOR (Tr. II, 45-47), leaving uncertainty about Applicant’s assignments and causing “some frustration.” (Tr. II, 83-84.) - The Tribunal concluded the purposes of the Initiative and fairness required that the new manager be advised of Applicant’s program and undertake proactive measures to support its success. - Broader diversity efforts included “strengthened career development support” for internal diverse staff and measures such as a pilot mentoring program and enhanced feedback—recognizing the importance of strengthened career development support for success of external B-Level recruits as well. ### Tribunal conclusions on fairness and obligations - The Tribunal decided: - The Fund did not abuse its discretion in non-conversion on the ground Applicant failed to demonstrate requisite “career potential.” - Applicant did not establish non-conversion was improperly motivated by bias or discrimination. - The Initiative required the Fund to take proactive steps to facilitate integration and provide heightened supervisory support; the record showed managerial lapses that amplified Applicant’s integration challenges, but the Tribunal’s primary conclusion on non-conversion rested on lack of demonstrated career potential. *Source: The Tribunal's findings and conclusions as stated in the document.* ### 205. Inevitably, there will be challenges in implementing programs such as the Initiative. ### j2019-2 - 205. Inevitably, there will be challenges in implementing programs such as the Initiative. ### Implementation challenges and managerial duties - Individuals entering the Fund at senior levels face: - formidable challenges learning institutional ways and gaining respect of subordinates and peers. - challenges relating to acceptance of the program by existing staff. - The Initiative was designed to “mitigate the impact on promotion prospects of internal non-diverse staff.” (Memorandum from HRD Director to Deputy Managing Director, “Measures to Improve Diversity at the Fund,” October 18, 2010.) - The Tribunal found managerial responsibility to mitigate staff concerns about Initiative recruits; managers in Applicant’s case “fell short of this responsibility.” - Testimony noted questioning after Applicant’s appointment: “after the announcement [of Applicant’s appointment] went out, there was sort of questioning . . . – well, managers told me the staff had been questioning why, what was this – they didn’t see the need for this job. It wasn’t a real job.” (Tr. I, 133, SPM.) ### Tribunal findings on conversion, career potential, and fair treatment - The Fund’s discretionary authority to convert fixed-term appointments is “constrained by principles of fair treatment.” - The Initiative provided funding for Applicant’s B-Level position for a three-year term without any provision for continuation at the conclusion of that period; the Fund was incumbent to take proactive efforts to assist Applicant to “learn the institutional culture, build networks, and make [himself] more competitive for B-Level vacancies as they arose.” - Tribunal conclusions: - Applicant has not shown his Department was obligated to “absorb” him after three years’ central funding under the Initiative. - The Fund did not abuse its discretion in taking the non-conversion decision on the ground that Applicant did not demonstrate “career potential” as required by GAO No. 3 and the Guidelines for Conversion of Fixed-Term Appointments. - Applicant’s performance was deemed within the “Effective” range; managers could reasonably determine his “career potential” fell short of that required for conversion. - The Tribunal did not need to decide whether the non-conversion decision could also be sustained on the basis of lack of “staffing need.” - Applicant did not establish that the non-conversion decision was improperly motivated by bias or discrimination. - The Fund failed to treat Applicant fairly in relation to his appointment under the Initiative, given the purposes of the B-Level Diversity Hiring Initiative; managerial shortcomings amplified the challenges Applicant faced as an Initiative recruit. - Remedy entitlement: For the lapse in fair treatment, Applicant is entitled to compensation. ### Remedies framework and categories - Tribunal remedial authority is found in Article XIV, Section 1, of the Statute: where an application challenging the legality of an individual decision is well-founded, the Tribunal shall prescribe rescission of such decision and all other measures required to correct the effects of that decision. - Tribunal’s jurisprudence identifies three categories of remedial powers: - rescission of the contested decision plus measures to correct effects (monetary compensation or specific performance); - compensation for intangible injury resulting from procedural failure in taking a sustainable decision; - compensation to correct effects of intangible injury due to failure to act in accordance with legal obligations where there may be no decision to rescind. - Intangible injury arises when the Fund fails to take decisions in accordance with fair and reasonable procedures; compensation responds to staff members’ legitimate expectations that the Fund will act in accordance with the rule of law. ### Assessment and award for intangible injury - Nature of harm: managers failed to take proactive steps to give effect to the Initiative’s purposes in Applicant’s case, given the uneasy fit between the Initiative and the fixed-term appointment process. - Aggravating factor: Fund officials encouraged Applicant to opt for a position under the Initiative to “count towards the department’s B-level [diversity] benchmark levels” despite concerns that the Advisor role would not adequately test capacity to operate as a Division Chief. Managers did not subsequently “facilitate [Applicant’s] . . . integration,” as envisioned by the Initiative. - Compensation determined for intangible injury: - 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 - Article XIV, Section 4, of the Statute authorizes the Tribunal to order that reasonable costs incurred by the applicant, including counsel costs, be totally or partially borne by the Fund, taking into account nature and complexity, nature and quality of work performed, and amount of fees in relation to prevailing rates. - Tribunal applies a “measure of proportionality” to fee awards, based on degree of applicant’s success in the context of the totality of the case, weighing “relative centrality and complexity” of claims and their “ultimate disposition.” - Tribunal may consider the record assembled by counsel in pursuit of unsuccessful claims when awarding fees. - In this case: - Applicant did not prevail on his chief complaint (abuse of discretion in non-conversion). - Applicant prevailed in showing the Fund did not treat him fairly in relation to his appointment under the Initiative. - The Application raised important issues relating to differentiation of “performance” and “career potential” and the relationship between the B-Level Diversity Hiring Initiative and the fixed-term appointment process. - Legal fees and costs award: - the Fund shall pay Applicant the sum of $22,201.08, being fifty percent of the total amount of legal fees and costs incurred by him in the case. ### Final decision (Tribunal orders) - The Administrative Tribunal of the International Monetary Fund unanimously decides: 1. The Fund’s decision not to convert Mr. “OO”’s fixed-term appointment to an open-ended appointment on the ground that he failed to demonstrate “career potential” with the Fund is sustained. 2. It is not necessary to decide whether the Fund’s decision not to convert Mr. “OO”’s fixed-term appointment to an open-ended appointment on the ground of lack of “staffing need” may also be sustained. 3. The Fund failed to treat Mr. “OO” fairly in relation to his appointment under the Initiative, given the purposes of the B-Level Diversity Hiring Initiative. 4. To correct the effects of the Fund’s failure identified at paragraph 3, Mr. “OO” is awarded as compensation the sum equivalent to nine months’ salary at the time of the lapse of his fixed-term appointment. 5. The Fund shall also pay Mr. “OO” the sum of $22,201.08, being fifty percent of the total amount of legal fees and costs incurred by Mr. “OO” in the case. - Judgment signatures: Catherine M. O’Regan, President; Andrés Rigo Sureda, Judge; Jan Paulsson, Judge; Registrar Celia Goldman. - Decision date and place: Washington, D.C., December 17, 2019. --- _Source: https://www.imf.org/-/media/files/imfat/j2019-2.pdf_