## “WW”, Applicant v. International Monetary Fund, IMFAT Judgment No. 2024-1 (February 12, 2024)

## Source details

**Canonical URL:** [“WW”, Applicant v. International Monetary Fund, IMFAT Judgment No. 2024-1 (February 12, 2024)](https://www.imf.org/-/media/files/imfat/j2024-1-summary.pdf)

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### Procedural background and scope
- Pleadings in the case consisted of over ten thousand pages.
- A significant number of facts were in dispute.
- Applicant challenged the Fund’s decisions to:
  - reassign him from his Resident Representative (“Res Rep”) position in Country X to Headquarters (“HQ”); and
  - grade him as “Not Rated” in his FY2019 Annual Performance Review (“APR”).

### Reassignment decision — legal framework and Tribunal findings
- Applicable legal standards cited:
  - Staff Handbook, GAO, Chapter 3.01, Section 5.2.
  - Tribunal jurisprudence affording the Fund broad discretion to transfer staff, applied equally to reassignment.
- Tribunal conclusions on discretionary review:
  - The reassignment decision was not arbitrary or capricious and had a reasonable basis given requirements of the Res Rep role and concerns about Applicant’s ability to carry out that role effectively.
- Errors of law alleged by Applicant and Tribunal rulings:
  - Applicant asserted he was not provided his APR and a performance discussion before reassignment.
    - Tribunal: Fund’s written internal law does not require provision of APR and a performance discussion prior to transfer; not an error of law.
  - Applicant asserted he was not afforded a right to be heard regarding accusations raised by two Country X employees.
    - Tribunal: Right to be heard is essential; not all details of accusations were shared with Applicant in advance of reassignment; this was an error of law that “tainted the decision to reassign Applicant.” (Para. 189.)
  - Applicant asserted he was not provided written summaries of performance discussions between him and management, or records of discussions in which he did not participate.
    - Tribunal: Internal law does not require managers’ non-APR summaries be shared with staff nor require staff access to deliberative documents; however, failure to provide certain written records in the specific circumstances amounted to a procedural failure (see below).
- Error of fact claim:
  - Applicant contended “[a]lmost all allegations against [him] were false and unsubstantiated.” (Para. 194.)
  - Tribunal: Contradictory statements and credibility issues existed among local staff; absent a proper and thorough investigation, Tribunal could not determine whether reassignment was based on an error of fact (Para. 206). Tribunal concluded accusations should have been referred to the office responsible for handling such matters; failure to refer violated fair and reasonable procedures.
- Additional procedural failures identified by the Tribunal:
  - Although not legally required, providing Applicant a written performance assessment in advance of reassignment would have been fair and reasonable given the close nexus between reassignment and APR decisions.
  - Written records of performance discussions between Applicant and managers, which were used to inform the reassignment, should have been provided to Applicant as an alternative to a written performance assessment; failure to provide them in the singular circumstances meant the reassignment decision was not taken in accordance with fair and reasonable procedures (Para. 220).
- Overall outcome on reassignment:
  - Tribunal sustained the reassignment decision on discretionary grounds but found procedural failures that warranted compensation for intangible injury.

### FY2019 APR decision — legal test and Tribunal findings
- Criteria applied by the Tribunal to assess abuse of discretion in performance assessments:
  - (a) Whether adequate and timely feedback of alleged performance shortcomings and an opportunity to remedy were provided.
  - (b) Whether the performance evaluation decision was based on a balanced assessment.
  - (c) Whether the performance evaluation was vitiated by improper motives.
  - (d) Whether the decision was taken in accordance with fair and reasonable procedures.
- Tribunal determinations regarding Applicant’s FY2019 APR:
  - Although the FY2019 APR had been conducted in accordance with Staff Handbook (Chapter 3.02, Sections 4 and 6) and Annual Talent Management Exercise Guidelines, the Fund abused its discretion in finalizing the FY2019 APR in two respects:
    - Inadequate feedback and opportunity to remedy:
      - Applicant had not been provided all specifics of the accusations against him, depriving him of his right to be heard; feedback regarding his management of local staff was incomplete and inadequate.
      - An issue was included in the final APR that had only been brought to Applicant’s attention for the first time in the APR; there was no indication the matter had been brought to Applicant’s attention prior to inclusion, so he lacked timely and adequate feedback and opportunity to remedy.
    - Lack of a balanced assessment:
      - The APR did not reflect that performance feedback from all relevant staff was sought or taken into consideration.
      - Certain criticisms were unsupported, and the APR failed to account for additional factors that reasonably could have impacted Applicant’s performance.
- Outcome on APR:
  - Tribunal concluded Fund abused its discretion in grading Applicant “Not Rated” in FY2019 APR.
  - Tribunal rescinded the FY2019 APR decision and ordered that Applicant’s FY2019 APR be expunged from his personnel record.
  - Tribunal noted limitations:
    - Due to passage of time, it would be neither practical nor appropriate to order the Fund to redo Applicant’s FY2019 APR.
    - Tribunal may not substitute its own judgment as to an appropriate performance rating.
    - Tribunal may not speculate as to any monetary consequences that may have flowed from the rescinded APR.
  - Tribunal concluded compensation for intangible injury was necessary to “correct the effects of that [rescinded APR] decision.” (Para. 305, referring to Statute, Article XIV, Section 1.)

### Allegations of discrimination and other procedural challenges
- Applicant alleged racial discrimination motivated the reassignment and APR decisions.
  - Tribunal: While regarding charges of racial discrimination with utmost seriousness, Applicant did not satisfy the burden of showing decisions were tainted by racial discrimination or otherwise improperly motivated by discrimination; evidence did not substantiate a causal link (Para. 177).
- Claims regarding pre-appointment process and administrative review channels:
  - Applicant had not challenged pre-appointment decisions before the Grievance Committee nor framed pre-appointment aspects as contested decisions to the Tribunal; assertions of a larger pattern were without merit.
  - Tribunal denied claims concerning the administrative review and Grievance Committee processes; found no evidence channels of review had been materially impaired. Applicant was provided opportunity to be heard, to present evidence, and to call witnesses before the Grievance Committee.

### Remedies, compensation, and costs
- Relief ordered by the Tribunal:
  - Reassignment decision: sustained (not overturned) but marked by procedural failures warranting compensation for intangible injury.
  - FY2019 APR decision: rescinded; FY2019 APR expunged from Applicant’s personnel record.
- Compensation awarded:
  - Compensation for intangible injury in the sum of nine (9) months’ net salary as at the time of the reassignment decision. Compensation addressed:
    - (a) Fund’s failure to afford Applicant a right to be heard in relation to accusations and to take the reassignment decision in accordance with fair and reasonable procedures; and
    - (b) to correct the effects of the Fund’s abuse of its discretionary authority in taking the FY2019 APR decision.
  - Legal fees and costs:
    - Pursuant to Article XIV(4) of the Statute and applying proportionality in light of Applicant’s partial success, Tribunal ordered the Fund to pay Applicant $98,000 in legal fees and costs, including unreimbursed fees and costs incurred in the Grievance Committee proceedings.

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_Source: https://www.imf.org/-/media/files/imfat/j2024-1-summary.pdf_