## JUDGMENT No. 2024-1 (j2024-1) ## Source details **Canonical URL:** [JUDGMENT No. 2024-1 (j2024-1)](https://www.imf.org/-/media/files/imfat/j2024-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2024-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2024-1.pdf.json) --- ### Tribunal composition and procedure - Administrative Tribunal of the International Monetary Fund composed, for this case, of Judge Nassib G. Ziadé, President, and Judges Deborah Thomas-Felix and Maria Vicien Milburn. - Applicant (anonymized as “WW”) was granted anonymity on March 29, 2022. - Pleadings exceed 10,000 pages; parties engaged in administrative review, Grievance Committee proceedings, and Tribunal proceedings with written submissions and oral proceedings on August 22, 2023. - Document-production rulings: Tribunal granted Document Requests Nos. 1, 2, 12 and 13 and denied Requests Nos. 3–11 and 15–21; Document Request No. 14 was denied as unnecessary given the evidentiary record. ### Principal contested decisions and procedural posture - Applicant challenged two principal decisions: - (a) reassignment from the Resident Representative (“Res Rep”) position in Country X to Headquarters (“HQ”); and - (b) grading as “Not Rated” in FY2019 Annual Performance Review (“APR”). - Applicant sought multiple remedies, including: - declaratory rulings that Fund law includes unwritten sources of law and the right to be heard; - update to the Staff Handbook recognizing unwritten sources of law; - expungement of specified records and redo of the FY2019 APR with an “Effective” rating or above; - monetary compensation (including pension-related losses) and damages equivalent to six times Applicant’s annual salary; - recording of APR roundtable discussions annually; and - legal fees and costs under Article XIV, Section 4 of the Tribunal’s Statute. ### Respondent’s principal contentions - Respondent defended reassignment on three independent grounds: - poor management of local staff; - poor exercise of judgment with HQ and country authorities; - lengthy absences from post for a role requiring in-country presence. - Respondent maintained no right to an APR discussion/report prior to reassignment and that the FY2019 “Not Rated” decision was not an abuse of discretion. - Respondent urged dismissal of claims relating to administrative review and Grievance Committee processes. ### Key factual background (selected) - Applicant is an economist and Fund staff member for over 20 years, previously rated outstanding and excellent. - Selected as Res Rep for Country X in December 2017; assumed the post in August 2018. - From September 2018 onward management reported multiple concerns including communications, alleged mistreatment of local staff, financial-account discrepancies (FY2019 Q2 discrepancy of over US$2,000 and a petty cash discrepancy of approximately US$1,000), and Applicant’s absences (approximately 30% of time in first nine months). - Investigations and internal memoranda: October 18, 2018 Memorandum for Files recorded purported poor management and judgment; February 25, 2019 Memorandum for Files recorded continued concerns and recommended further time to improve or potential reassignment. - Applicant investigated financial discrepancies and reported on October 25, 2018 that he could “reasonably conclude that IMF monies in [Country X] have been misused in a manner that meets the qualification of embezzlement, with a clear attempt to cover up the wrongdoing and mislead.” - Office Manager later found to have engaged in misconduct following investigation; HQ Budget Officer recommended reimbursement and noted Applicant corrected petty cash procedures. ### Evidence and contested witness accounts (summary) - Conflicting testimony and documentary contradictions existed, notably: - Driver alleged severe mistreatment and racist comments by Applicant, but other local staff (local Economist, Cleaner) testified positively about Applicant’s management. - WhatsApp and e-mail exchanges showed cordial communications between Applicant and the Driver, undermining some Driver assertions. - Office Manager’s explanations for financial discrepancies were inconsistent; Applicant discovered larger discrepancies than initially reported. - DRI process: HR Team sent DRI requests on March 16, 2019 to local Economist, Office Manager and Driver; feedback due April 12, 2019; most local subordinates did not provide DRI feedback (Cleaner deleted invitation thinking it was spam). ### Procedural review: administrative review and Grievance Committee - HRD Director’s administrative review (August 29, 2019) concluded reassignment was based on legitimate business reasons and denied racial discrimination. - Applicant filed Grievance (October 21, 2019); Grievance Committee hearings occurred in March 2021; Committee recommended denial of grievances (July 28, 2021); Management accepted recommendations (August 24, 2021). - Tribunal conducted de novo review, ordered limited additional document production, and held oral proceedings (August 22, 2023). ### Tribunal’s standard of review - Managerial discretionary decisions reviewed for arbitrariness, capriciousness, discrimination, improper motive, error of law or fact, or violation of fair and reasonable procedures. - Performance-assessment criteria applied: - (a) adequate and timely feedback and opportunity to remedy shortcomings; - (b) balanced assessment of performance; - (c) absence of improper motives; and - (d) decisions taken in accordance with fair and reasonable procedures. ### Tribunal findings on reassignment decision - Reasonableness: - Tribunal found the Fund had a reasonable basis to reassign Applicant: concerns about management of local staff, exercise of judgment, and extensive absences (Applicant absent approximately 30% of time during initial period) provided legitimate business reasons for reassignment. - Procedural failures (tainting the reassignment decision): - Applicant was denied a prompt and full right to be heard regarding accusations by the Driver and the Office Manager — this denial constituted an error of law that tainted the reassignment decision. - The allegations should have been referred to the office equipped to handle confidentiality and retaliation concerns (e.g., HRD or other neutral fact-finding office); failure to refer undermined fair and reasonable procedures. - Given the nexus between reassignment and the APR decision, managers should have provided Applicant either: - (i) a written assessment of performance in advance of reassignment; or - (ii) copies of the October 18, 2018 and February 25, 2019 Memoranda for Files in advance of the reassignment decision. - These procedural shortcomings warranted compensation for intangible injury despite upholding the reassignment on its merits. ### Tribunal findings on FY2019 APR decision - Abuse of discretion: - Tribunal concluded the decision to grade Applicant “Not Rated” in FY2019 APR constituted an abuse of discretion and was vitiated. - Bases for conclusion: - Applicant was not provided adequate feedback regarding some identified performance shortcomings or a sufficient opportunity to remedy them (e.g., certain specifics relied upon, such as alleged misuse of the office car, were first introduced late and were not shared with Applicant beforehand). - APR was not based on a balanced assessment: - Performance feedback from relevant staff and stakeholders was not consistently sought or taken into consideration; - Certain criticisms were unsupported given contradictory evidence (e.g., Office Manager credibility issues and Driver contradictions); - Relevant mitigating factors were not taken into account (inheriting a dysfunctional office, Office Manager’s illness and medical evacuation, office move to a Hotel). - No causal link established between alleged racial discrimination and the APR decision; the Tribunal limited discrimination claims to those asserting the impugned decisions were tainted by discrimination and found those claims unsubstantiated. - Remedy for APR: - The FY2019 APR is rescinded and shall be expunged from Applicant’s personnel record. - Tribunal declined to order a redo of the FY2019 APR or to substitute a new rating, citing impracticality given the passage of time and the Tribunal’s limited role in substituting managerial assessments. ### Remedies, compensation, and costs awarded - Compensation for intangible injury: - Tribunal awarded compensation in the sum of nine (9) months’ net salary as at the time of the reassignment decision to redress: - procedural failures in the reassignment decision (denial of a right to be heard and related procedural defects); and - to correct the effects of the Fund’s abuse of discretion in finalizing the FY2019 APR. - Legal fees and costs (Article XIV, Section 4): - Applicant sought $172,775 in fees and costs ($160,462.50 unreimbursed fees for Grievance Committee, $12,312.50 for Tribunal representation, plus $483 parking). - Tribunal awarded legal fees and costs totaling $98,000, allocated as: - $90,000 for legal fees and costs related to the Grievance Committee proceedings; and - $8,000 for legal fees and costs associated with representation before the Tribunal. - Other remedies sought by Applicant (expungement of administrative review memorandum and Grievance Committee report, order to grant “Effective” rating, damages equivalent to six times salary, recording APR roundtables annually, etc.) were denied as unnecessary, inappropriate, frivolous, or unfounded. ### Final disposition (unanimous) - Tribunal’s orders: 1. Applicant did not prevail on the reassignment abuse-of-discretion claim; reassignment sustained. 2. Applicant prevailed on the FY2019 APR abuse-of-discretion claim; FY2019 APR decision rescinded and expunged from Applicant’s personnel record. 3. Other complaints relating to the pre-appointment process and the administrative review and Grievance Committee processes are not sustained. 4. Award of nine (9) months’ net salary as at the time of the reassignment decision for intangible injury. 5. Award of $98,000 to Applicant for legal fees and costs. 6. All other claims for relief are denied. - Judgment signed by Judges Nassib G. Ziadé, Deborah Thomas-Felix, and Maria Vicien Milburn; Registrar Celia Goldman. - Decision issued in Washington, D.C., on February 12, 2024. *Source: Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2024-1 (j2024-1).* ### INTRODUCTION ........................................................................................................... ### INTRODUCTION ### Tribunal and procedural posture - The Administrative Tribunal of the International Monetary Fund (“Tribunal”) composed for this case, pursuant to Article VII, Section 4, of the Tribunal’s Statute, of Judge Nassib G. Ziadé, President, and Judges Deborah Thomas-Felix and Maria Vicien Milburn, decided the Application brought by “WW”, a staff member of the Fund. - Applicant’s request for anonymity was granted on March 29, 2022. - Applicant was represented on the written pleadings by Schott Law Associates, LLP; Ms. Tembiso Nleya of Schott Law Associates, LLP represented Applicant in the oral proceedings. - Respondent was represented on the written pleadings by Ms. Juliet Johnson, then Senior Counsel, and Mr. Antonio Hernandes-Neto, Senior Counsel, Administrative Law Unit, IMF Legal Department. Ms. Melissa Su Thomas, Deputy Division Chief, and Mr. Hernandes-Neto appeared for Respondent in oral proceedings. - The pleadings consist of over ten thousand pages and a significant number of facts are in dispute; the Tribunal assessed pleadings and includes only facts relevant to the Judgment. ### Principal contested decisions and Applicant’s contentions - Applicant challenges two principal decisions: - (a) the decision to reassign him from his Resident Representative (“Res Rep”) position to Headquarters (“HQ”); and - (b) the decision to grade him as “Not Rated” in his FY2019 Annual Performance Review (“APR”). - Applicant contends the contested decisions violated: - Staff Handbook provisions governing performance management and reassignment of staff; - general principles of international administrative law, including the right to be heard. - Applicant alleges the reassignment decision was based on improper evaluation relying on false and unsubstantiated allegations. - Applicant challenges aspects of the administrative review and Grievance Committee processes, alleging: - violation of his right to be heard and the application of unwritten sources of law as recognized in the Commentary on Article III of the Statute of the Administrative Tribunal; - that the then Director of the Human Resources Department (“HRD”) was involved in the reassignment decision and should have recused herself from administrative review; - that the Grievance Committee incorrectly concluded Applicant waived his claim regarding obstruction of his appointment as Res Rep; - that he was subject to racial discrimination and did not waive that claim, contrary to the Grievance Committee’s conclusion. ### Remedies sought by Applicant - Applicant seeks the following relief: - (a) a ruling that Fund law (at General Administrative Order (“GAO”) 11, Chapter 11.03, Section 4.2(ii) and Section 5.10(ii)), as applied by the Grievance Committee, includes unwritten sources of law referenced in the Commentary on Article III of the Statute of the Administrative Tribunal; - (b) an order that the Fund update the Staff Handbook to recognize unwritten sources of law, in particular the right to be heard before adverse decisions are taken, and in connection with performance assessment and record-keeping; - (c) a declaration that the Fund violated Fund law to Applicant’s detriment, including violations of Applicant’s rights: - (i) to be heard, including on all allegations against Applicant; - (ii) to proper performance discussions and records thereof; - (iii) to a proper FY2019 performance evaluation process; - (iv) to a fair administrative review process; - (v) to a respectful work environment; - (vi) to a fair Grievance Committee process; - (d) expungement of various documents from Applicant’s records, including the administrative review memorandum, Grievance Committee report, and a “fraudulent” FY2019 APR; - (e) an order to redo Applicant’s FY2019 APR and grant Applicant a rating of “Effective” or above; - (f) an order to clear Applicant’s records of unsubstantiated allegations against him; - (g) a ruling that remarks made by the then HRD Director and “false allegations” in Applicant’s records by Fund managers constitute racial discrimination; - (h) compensation for monetary losses, with interest, including in relation to pension, arising from the reassignment and APR downgrade decisions; - (i) damages equivalent to six times Applicant’s annual salary at the time of the decisions for “egregious violations” of Fund law, long-term career damage, reputational damage, and moral and intangible damages arising from a “harassment, disrespectful, hostile, and stressful work environment”; - (j) an order that the Fund start recording APR roundtable discussions every year; - (k) payment of legal fees and costs under Article XIV, Section 4, of the Tribunal’s Statute if the Application is well-founded in whole or in part. ### Respondent’s principal contentions - Respondent maintains a sufficient basis to reassign Applicant from his Res Rep position, arguing three equally valid and independent reasons that Applicant could no longer effectively serve as Res Rep: - Applicant’s poor management of the local staff; - Applicant’s poor exercise of judgment in interactions with HQ and the country authorities; - Applicant’s lengthy absences from his post for work that requires presence in-country. - Respondent argues Applicant had no right to an APR discussion or report before the reassignment decision. - Respondent contends the FY2019 “Not Rated” APR decision did not constitute an abuse of discretion, asserting: - Applicant was given timely feedback of performance deficiencies and an opportunity to remedy them; - the performance evaluation decision was based on a balanced assessment of Applicant’s performance, taken in accordance with fair and reasonable procedures, and not based on improper motives. - Respondent maintains that the Tribunal should dismiss Applicant’s claims relating to the administrative review and Grievance Committee processes. ### Factual background (selected facts) - Applicant is an economist who has served as a Fund staff member for over 20 years, at HQ and overseas, including as Res Rep and Mission Chief; Applicant previously received ratings of outstanding and excellent. - In December 2017, Applicant was selected to be Res Rep for Country X; selection was unanimous by a panel that included the Deputy Senior Personnel Manager (“SPM”) and the Country X Mission Chief. The Country X Division Chief was to be Applicant’s manager and the Mission Chief his direct supervisor. - Applicant assumed the Res Rep position in August 2018. - Shortly after arrival in Country X, Applicant took a week of annual leave, followed by a week in Washington, D.C., for personal reasons. WhatsApp messages show the Country X Mission Chief was aware of the leave; however, during the Grievance Committee hearings, the Mission Chief testified she was unaware Applicant had traveled to Washington and did not recall the WhatsApp messages. - The Country X Mission Chief went on leave for personal reasons soon thereafter; the Country X Senior Economist became acting Mission Chief and led a scheduled mission to Country X in September. - On September 11, 2018, the Country X acting Mission Chief wrote to Applicant concerning an e-mail Applicant had sent to an e-mail group and the Regional Deputy Director, instructing Applicant: “please do not send messages to [the e-mail group] and [the Regional Deputy Director] until further notice,” and advising that meetings with the Governor be kept short and not raise policy issues. - On September 12, 2018, a Division Chief in the same Region emailed the acting Mission Chief about Applicant, stating: “[Applicant] forwarded an internal email that reported on discussions between a res rep and her counterpart to the [Country X] authorities. A very poor display of judgement as far as I’m concerned. I’ve communicated this to him, no need for further action. But may be useful to keep an eye on his communication style.” - Also on September 12, 2018, the Country X acting Mission Chief emailed a Center Coordinator about the upcoming September mission: “The new resident representative has shown very poor displays of judgement since his posting about two weeks ago. I am in contact with [the Communications Department] and handling this. I suspect he will experience a steep learning curve on communications. There is a need to handle this very delicately and mitigate any collateral damage.” *Source: JUDGMENT No. 2024-1, Administrative Tribunal of the International Monetary Fund* ### 16. The Center Coordinator thanked the Country X acting Mission Chief for the “heads up,” ### j2024-1 - 16. The Center Coordinator thanked the Country X acting Mission Chief for the “heads up,” ### Management and interpersonal concerns raised about Applicant - The Center Coordinator noted Applicant “seems to have been out of the office for a while, shortly after joining. There may be something going on in his private life that has distracted him?” - The Country X acting Mission Chief stated Applicant was going through “[some personal matters]” and he was “cutting [Applicant] some slack because of that . . . .” - The acting Mission Chief added concerns that Applicant failed to share an internal communication on TA [Technical Assistance] with the authorities and held policy discussions with authorities “immediately prior to the mission in his long delayed courtesy calls.” - Mission staff reported that local staff had “changed” since Applicant’s arrival; one Mission staff member reportedly described Applicant’s style as “imposing” and “intimidating” (that staff member later emphatically denied having said this). - The Driver later testified Applicant spoke to her in a “very brutal,” “inappropriate,” “excessively rude” and “very savage, wild” manner; made racist comments to her; refused to speak with her for a period of time; was “very angry and rude” with her; and was otherwise intimidating. - The local Economist testified he rated Applicant “high” as a manager, that Applicant “interacted very well” with staff and was “inclusive,” and denied Applicant ever said anything to staff that was “infuriating.” ### Timeline of key interactions, observations, and communications - September 14, 2018: Applicant circulated a Weekly Note. The Country X acting Mission Chief responded same day, pointing out errors, asking Applicant to recall, fix and resend, and instructing: “Also please do not include [the Country X Mission Chief] as a recipient as requested earlier.” (Emphasis in original.) - September 18, 2018: Country X acting Mission Chief traveled to Country X with two mission team members; observed Driver “looked very distracted and depressed” and learned the Driver worked very long hours and was not permitted to have lunch during meetings. The acting Mission Chief did not speak with Applicant about the Driver’s issues, stating he “had a lot of other issues going on and I was there for one mission . . . .” - September 21, 2018: Acting Mission Chief sent “[b]rief notes from the field” to the Regional Deputy Director reporting “minor disruptions from the Res Rep office,” that he was “gently coaching [Applicant] daily,” and his “initial diagnosis” that Applicant “seems to delegate too much to the local staff who are unable to function without guidance.” - Late September 2018: Regional Deputy Director asked the Country X Mission Chief to join the tail end of the mission to reassure donors and to check on Applicant because they had been “hearing . . . things.” - End of September 2018: Country X Mission Chief arrived in Country X; Driver alleged Applicant was “yelling at her, and he wasn’t letting her eat, and she wanted to leave the IMF.” Mission Chief concluded the Driver was “very, very unhappy.” - September 29, 2018: Mission Chief asked Office Manager to set up bilateral meetings “for due diligence on the new resrep.” - Early October 2018: Mission Chief recommended an independent assessment by the Division Chief, Regional Deputy Director and/or HR team to “talking to the team and the local staff.” - October 3-5, 2018: Country X Division Chief and the HR Business Partner conducted interviews of mission and local staff. - October 3, 2018: HR Business Partner reported by e-mail that (a) Applicant yelled at local staff and made the Driver cry because the car was not waiting at a hotel; (b) Applicant told them they were responsible for his security; (c) Applicant micromanaged; and (d) Applicant did not allow the Driver to take meal breaks. Both Driver and Office Manager feared retaliation if Applicant learned of their statements. - October 16, 2018: Country X Division Chief spoke with Applicant; Applicant expressed “concern” that Mission Chief had asked team members for feedback rather than coming to him directly. - October 17, 2018: Division Chief and Mission Chief held follow-up call with Applicant. Memorandum for Files (dated October 18, 2018) recorded that mission team had unanimously expressed concerns about Applicant and that “immediate improvement was needed.” - October 18, 2018: Memorandum for Files prepared by Division Chief entitled “Performance issues with incoming RR [Res Rep] for [Country X]” set out detailed examples of purported poor management, lack of teamwork and displays of poor judgment. - October 23, 2018: Applicant asked HQ Budget Team to withhold processing of the FY2019 Q2 financial report while he “try[ed] to understand the discrepancy between the ERS balance and the bank statement balance,” and requested that the investigation be treated as strictly confidential. - October 25, 2018: Mission Chief asked Division Chief to call the Office Manager who was “very upset” and perceived Applicant’s actions as showing “obvious mistrust” and possibly creating a “coalition with [the local Economist]” to go after him. ### Independent assessment, follow-up, and management actions proposed - Country X Mission Chief recommended an independent assessment by the Division Chief, Regional Deputy Director and/or HR to interview team and local staff. - Division Chief and HR Business Partner conducted interviews on October 3-5, 2018. - Memorandum for Files (October 18, 2018) recorded next steps: - Follow up with local staff once or twice a week. - Division Chief to call Applicant every two weeks. - Offer management coaching to Applicant. - Emphasize that Applicant’s intentions were believed to be good and that it was early in the assignment; “there is time to take corrective, but immediate, action.” - The record does not reflect that specifics of the accusations were shared with Applicant; Applicant was not provided a copy of the October 18, 2018 Memorandum for Files. - Rationale given by Mission Chief for not providing the Memorandum: hope the situation would improve and desire to protect local staff whose names were identified in the Memorandum. - Alternate rationale provided by the Deputy SPM: some records of discussions with staff are “not intended to be shared with staff” to avoid contentious negotiations over text. ### Financial, administrative, and HR issues identified - FY2019 Q2: Office Manager completed Country X quarterly financial report for FY2019 Q2—the first report since Applicant’s arrival—that contained a discrepancy of over US$2,000 between the IMF ledger (“ERS”) and the bank statement. - October 22, 2018: Office Manager submitted the report to HQ Budget Team without a bank reconciliation; explained discrepancy as a banking software issue following a migration of the local bank’s core banking system and said the issue should be corrected next month. Office Manager later testified the previous Res Rep had given him a salary advance by check and that the banking software issue had impacted two guards and the Gardener, resulting in double salary payments. - The FY2019 Q2 financial report also identified a petty cash discrepancy of approximately US$1,000. - Applicant learned Office Manager kept petty cash in his personal bank account because the office safe was not functioning; Applicant directed the Office Manager to “buy a safe for the IMF petty cash account and put in the IMF cash asap. . . . [and] [l]et me know when it is done.” - October 23, 2018: Office Manager asked Applicant to sign a check in Applicant’s name for a payment the Office Manager could not explain; this prompted Applicant to request HQ withhold processing of the FY2019 Q2 report pending investigation. ### Judgment, reporting, and political-sensitivity concerns - Managers raised concerns in e-mails about Applicant’s oversight of the local Economist (checking his work), Applicant’s purported defensiveness, and his judgment concerning political reporting. - Mission Chief emphasized to Applicant the need to be “more cautious regarding how he reported on Country X politics,” noting issues are “extremely sensitive and we do not want to appear to be taking any sides.” *Source: Grievance Committee record and internal communications concerning Country X mission activities and the incoming Res Rep (dates and quotations as recorded in the unit).* ### 46. Also by an e-mail dated October 25, 2018, Applicant wrote to the HQ Budget Officer, ### j2024-1 - 46. Also by an e-mail dated October 25, 2018, Applicant wrote to the HQ Budget Officer, ### Investigation findings reported by Applicant (October 25, 2018) - Applicant reported the results of his “investigation into discrepancies in IMF accounts.” - Applicant stated he could “reasonably conclude that IMF monies in [Country X] have been misused in a manner that meets the qualification of embezzlement, with a clear attempt to cover up the wrongdoing and mislead.” - Applicant also reported that “basic safeguards on the IMF Petty cash account have also been ignored.” - Applicant noted preliminary steps taken and recommended that “all FY2019 submissions must be redone.” - Applicant requested guidance “on how to proceed and actions to be taken, including to ensure that people are held accountable.” ### HQ Budget Officer review and identified issues (Memorandum for Files, November 14, 2018) - Issues identified: - (a) the previous Res Rep had made a payment to the Office Manager for approximately US$2,000 which, due to banking software issues, resulted in a double payment of the Office Manager’s salary; - (b) the Office Manager had never reimbursed this extra payment; and - (c) neither the previous Res Rep nor the Office Manager had followed Fund standard procedures for securing petty cash in the office safe (rather, the previous Res Rep wrote checks to the Office Manager, which he cashed and used to pay petty cash items out of pocket). - Recommendations and outcomes: - The HQ Budget Officer recommended that the Office Manager reimburse the extra salary payment immediately and noted that Applicant had corrected the petty cash procedures. - The extra salary payment was later reimbursed. - Applicant asserts that, in total, the Office Manager should have reimbursed the Fund approximately US$3,000 (US$1,000 of which was the missing petty cash). ### Distribution, access, and communication issues - The HQ Budget Officer copied the Country X Mission Chief, the Country X Division Chief and the Deputy SPM on the November 14 Memorandum for Files, but it is not clear if or when they actually received the Memorandum. - The Division Chief and the Mission Chief testified they saw the Memorandum for the first time when Applicant’s counsel presented it at the Grievance Committee hearing. - The HQ Budget Officer informed Applicant of the outcome of the review by e-mail dated December 4, 2018, without providing him a copy of the Memorandum. ### Departmental management reactions and performance concerns (late 2018–early 2019) - Management frustrations surfaced in November 2018 concerning: - purported lack of quality in Applicant’s oversight work; - Applicant’s purported defensiveness; and - Applicant’s forwarding of documents without providing context and comment. - Country X Mission Chief (November 16) suggested recommending HR “pull [Applicant] back, and give him a desk job. He is just creating too much stress for all of us.” The Division Chief did not immediately make an HR recommendation. - The Deputy SPM described Applicant’s investigation as “extremely extensive” and raising “very serious issues,” while criticizing Applicant for reaching conclusions without sufficient prior discussion with the mission chief, the division chief, or the previous Res Rep. - A mid-term APR meeting (February 11, 2019) and a February 25, 2019 Memorandum for Files recorded performance issues: - (a) limited physical presence in the Country X office and need for greater engagement; - (b) need to produce consistently high quality work product; and - (c) need to improve management of local staff, as distrust with and among local staff was growing. - The Memorandum recommended Applicant investigate facts “in a more measured and calm manner, without interim accusations,” noting the alleged “misdeeds” remained unproven. - The Memorandum concluded that, given Applicant’s “current personal difficulties and strong past record,” additional time should be given to correct behavior over the remainder of the FY, but that reassignment to a desk position at HQ should be considered if performance problems persist. ### Office operations, staff health, and financial reporting discrepancies (Jan–Mar 2019) - Office lease in Country X expired January 31, 2019; the country office moved to a temporary location (the “Hotel”) pending identification of a new permanent office. - The Office Manager became very ill and required planning for medical evacuation in February 2019; Applicant was closely involved from January through April 2019 in medical coordination and support. - On January 31, 2019, the Office Manager submitted the FY2019 Q3 submission and reported a discrepancy of about US$82; Applicant and the local Economist later discovered the discrepancy was about ten times higher than reported by the Office Manager. - Concerns about Applicant’s absences and teleworking were raised: - Mission Chief noted extensive absences and suggested documenting them (February 6, 2019). - Applicant defended teleworking but was told the issue was availability and engagement when teleworking rather than teleworking itself. - Office dysfunction described by Applicant and corroborated in exchanges: - Applicant described disorganized financial records and missing documentation upon arrival, requiring extensive work to “put financial documents in order.” - Applicant reported relying on the local Economist, the Driver, and the Cleaner to re-establish organization and transparency. - HR and performance process reminders: - On March 7, 2019, SPM issued memorandum setting out APR procedures and the Direct Report Input (“DRI”) tool; Res Reps were expected to participate in the DRI process “provided they have a minimum of three raters.” ### Meetings, notes, and record-keeping - A January 9, 2019 meeting in Washington, D.C. (Applicant, a Regional Deputy Director, and the Deputy SPM) produced a draft note reminding Applicant of “the importance of managing well the local office,” the need for presence at duty station, and that HR was ready to offer headquarters desk assignments if duties became incompatible. - The Deputy SPM decided not to share the draft note with Applicant to preserve an official record. - A March 10, 2019 meeting in Country X between the Mission Chief and Applicant covered performance concerns, the need to “fix” local staff issues, the requirement for at least three DRI raters, and potential HR reassignment if problems did not improve. There is no written record of that meeting. *Excerpt from j2024-1.* ### 70. The Country X Mission Chief testified before the Grievance Committee that she was ### The Country X Mission Chief testimony and subsequent personnel actions ### Allegations, testimonies, and disputed conduct - The Country X Mission Chief testified before the Grievance Committee that she was hopeful meetings with government counterparts “would go smoothly,” but that Applicant displayed “poor judgment.” - The Mission Chief cited two purported instances of poor judgment: (a) Applicant queried a counterpart about obtaining a discount for a tourist trip; and (b) Applicant asked the CEO of the national airline for assistance in obtaining his frequent flyer card. - The Mission Chief testified she had heard from the Driver that Applicant was referring to her as his “domestique,” was using the Res Rep car for “personal stuff” and was being impatient and disrespectful with lower-level functionaries in the Country X Government. Applicant disputes these assertions. - The Driver testified that she had had no discussions with Applicant regarding a salary increase, that during this period she and Applicant rarely communicated and that any written messages were “very limited and formal.” - The Cleaner testified that Applicant’s “management was good,” that before the Office temporarily moved to the Hotel Applicant “came regularly into the office,” and that Applicant’s relationship with the Driver “didn’t match very well.” ### DRI feedback requests and responses (FY2019 APR process) - On March 16, 2019, the HR Team e-mailed DRI requests seeking feedback on Applicant from the local Economist, the Office Manager and the Driver (through their IMF e-mail accounts) as part of the FY2019 APR process; an informal request was also sent to the Cleaner through her personal e-mail account. - The feedback of the local Economist, the Office Manager and the Driver was due on April 12, 2019. A reminder e-mail was sent early in April. They did not respond. - The local Economist testified he did not recall receiving the DRI feedback request and that he normally ignores messages like this, believing them to be a scam. - The Cleaner testified she had received an e-mail (although it is not in the record) asking to provide input on Applicant’s performance, but thought it was “spam” and deleted the e-mail. She stated that if she had provided feedback she would have said that Applicant “was a good manager.” - There is no evidence in the record of feedback being sought from any other Fund employees. ### Salary advocacy and local-staff management issues - On March 26, 2019, Applicant submitted an FY19 forecast and FY20 budget request for the Country X office addressing the salaries of the Cleaner and the Driver; Applicant explained their salaries needed to “catch up with the UN salary scale.” - Applicant stated the Driver had not been paid her full salary (only a base salary without a cash allowance). - Applicant stated the Cleaner was actually performing the duties of an administrative assistant and that her salary was “well below what the UN pays its staff with the lowest grade.” Applicant lobbied, unsuccessfully, for the Cleaner to receive either a promotion or a significant salary increase (beyond a seven percent increase agreed to by HR). - Documentary evidence reflects that Applicant and the Driver had exchanged friendly e-mail and WhatsApp messages regarding a salary increase for her; the Driver’s testimony contradicted that account. ### Financial record concerns and audit actions - On April 2, 2019, Applicant wrote to the HQ Budget Officer regarding Applicant’s review of the FY2019 Q3 financial accounts, stating that the ending balance was inflated by “about ten times the amount originally reported by the Office Manager.” - The HQ Budget Officer testified that to his knowledge the books (prepared by the Office Manager) were never correct during Applicant’s tenure as Res Rep, and that “in the end [he] couldn’t figure out what the discrepancy was . . . .” He added that an official audit by the Finance Department was requested but that he did not know the outcome of the audit. - In the oral proceedings before the Tribunal, counsel for Respondent disclosed that disciplinary proceedings were ultimately initiated against the Office Manager and that these resulted in a misconduct finding against him, on the basis of issues raised by the Finance Department, Applicant’s Department and Applicant. Applicant asserted that the investigation was initiated based on a complaint made by him after he was later reassigned from his Res Rep position. ### Leave, teleworking, and regional management concerns about presence in post - In late April 2019, Applicant exchanged e-mail communications proposing leave and teleworking arrangements up until the end of his assignment in August 2021, presenting a number of different leave scenarios. - The SPM wrote that no matter how days were accounted for, Applicant would be out of Country X for up to “15 or 16 weeks a year” which the SPM viewed as unacceptable for a Res Rep: “We need a res rep to be physically present in the post for much of the time, and to be flexible enough to be there for unanticipated events that might arise.” - The SPM added: “A plan that requires you to be out of the country for around 15‐16 weeks a year, regardless of whether it is on leave or otherwise, and for us to pre‐commit to specific leave days up to two years ahead, is not consistent with that.” - The SPM indicated readiness “to accommodate it by finding a suitable assignment for you at HQ.” ### Reassignment process, HR guidance, and managerial concerns - On April 30, 2019, the Country X Mission Chief met with a senior HRD official, the HR Business Partner, and the Deputy SPM to discuss a process for reassigning Applicant. The HRD official reportedly explained that teleworking outside the duty station required prior approval by the Department Director up to a maximum of 30 days; beyond that, it must be approved by HRD. - The HRD official was said to be of the view that performance issues, especially the management of local staff, would “clearly meet” the standard for reassignment, but cautioned on careful process for fairness and potential future litigation and suggested it would be better for Applicant to accept reassignment voluntarily. - On May 1, 2019, the Mission Chief submitted Applicant’s draft APR to the Country X Division Chief, providing many positive comments and one paragraph setting out concerns, including: management of the local office; aligning his work agenda with HQ; judgment about handling sensitive material in emails and reporting content; keeping the team in the loop about his activities; and responsiveness when teleworking outside the duty station. The Mission Chief wrote that Applicant’s “performance was [effective] in FY2019,” but testified she “softballed it” and left the rating open because she did not want a “stain on his record.” - The Mission Chief acknowledged the draft “Effective” rating was “a generous interpretation of his performance” and that if she had not been concerned about Applicant’s career impact she would not have put an “Effective” rating. ### FY2019 APR roundtable, “Not Rated” decision, and grounds cited - On May 15, 2019, the department held its FY2019 APR roundtable discussion. The Country X Director testified being “very – very concerned about issues that were coming up in terms of [Applicant’s] performance,” including extensive absences, difficulties managing local staff, and not taking feedback well. - As a result of the roundtable, two principal decisions were made: (1) to reassign Applicant from his Res Rep position to HQ; and (2) to give him a “Not Rated” performance evaluation. - The SPM testified that the “greatest concern” was “how [Applicant] managed and treated local staff,” and that giving an “Effective” rating while deciding recall was “not consistent,” so “in this case it had to be a not rated.” - The Mission Chief testified she lobbied to keep the rating as “Effective” taking into consideration Applicant’s personal issues. ### Documentation of performance issues and timelines - On May 20, 2019, the Country X Division Chief prepared a document titled “[p]erformance issues regarding [Applicant] as resrep in [Country X]” listing detailed examples, including: - (a) Applicant leveled numerous accusations of financial misconduct against the Office Manager without taking the time to get a complete picture; - (b) according to the Driver, Applicant had confronted her about having shared her concerns with HQ; - (c) since the local office moved to the Hotel, Applicant had been working from home against the recommendations of his supervisors; - (d) Applicant made the Office Manager’s medical evacuation difficult; - (e) Applicant unnecessarily raised expectations of the Cleaner that she could have administrative assistant-type responsibilities for a higher salary; - (f) Applicant was frequently absent from the office (during the first nine months he was out of the duty station about 30% of the time); - (g) numerous days away from the office were never claimed or were claimed incorrectly; - (h) due to frequent absences Applicant had been leaving the local Economist (who was not trusted by others) in charge of the office; - (i) Applicant availed himself of office resources for personal use and prioritized personal tasks over office tasks; - (j) since Applicant’s arrival as Res Rep there had been a deterioration of the quality and quantity of information from the field; and - (k) local staff had been contacting the Country X Mission Chief and the HR team “very frequently” with concerns about Applicant’s actions, and they asked about speaking with the IMF Ombudsperson. ### Intern hiring, communications, and final weeks in-post - On May 22, 2019, Regional management learned Applicant had hired an intern without their approval. The SPM wrote to Applicant: “I am really shocked that you would have someone working in the office that neither [the Country X Mission Chief] nor the HR team were aware of. Did you inform anyone at HQ about this arrangement? Also, can you let me know whether you (or he) have ever presented him as having any connection with the IMF?” - Applicant asserted he had obtained HQ approval and forwarded supporting material; the SPM found the internship arrangement “very ‘problematic’” and directed Applicant to end the arrangement by the end of the week. - On May 22 and 23, 2019, HR and Regional management exchanged draft speaking notes for a call with Applicant identifying concerns: loss of trust and confidence with local employees; limited availability in post and inadequate communication; and substantial concerns about Applicant’s exercise of judgment in handling sensitive issues with the authorities. The notes stated management intended to reassign Applicant to HQ and expected him to leave Country X within two weeks. - The performance discussion with Applicant took place on May 23, 2019, in a telephone call with the SPM, who followed up with an e-mail to put the conversation on record using the above speaking notes. - On May 23 and 24, 2019, Applicant sent 17 e-mails, with attachments, to the Regional Director about “his situation.” In the penultimate e-mail Applicant wrote: “I have sent you 16 emails with many attachments in addition to this one. They show you that there has always been an unprofessional and racist agenda behind my assignment from the beginning. Do the investigation yourself. Ask the authorities why my appointment was delayed. Ask for evidence of ‘disrespect’ Check my ‘availability’ in [Country X], including for the authorities. . . . You still have time to stop this racist scandal!!!!” *Italicized attribution: Facts drawn from the Grievance Committee and Tribunal record.* ### 99. The Regional Director responded on May 24, 2019, stating that he did not “see anything to ### j2024-1 - 99. The Regional Director responded on May 24, 2019, stating that he did not “see anything to ### Timeline and personnel actions - May 24, 2019: Regional Director responded that he did not “see anything to alter the assessment of your performance that was conveyed to you . . . .” and added “in some areas, it reinforced my concerns.” He directed Applicant to return to HQ no later than June 10, 2019. - Applicant did not respond to the June 10 return direction; senior managers made multiple unsuccessful attempts to reach Applicant and obtain commitment that he would return by June 10. - June 9, 2019: Applicant wrote apologizing for delayed response, citing a stressful situation, and asked for an additional 10-14 days to pack and bid farewell; he expressed surprise “that nobody ever asked [him] for [his] side of the story whenever allegations surfaced against [him] at HQ.” - June 10, 2019: Regional Director agreed to allow additional time; Applicant expected to return to Washington, D.C., no later than June 24, 2019 (noting his Res Rep assignment was over June 10), after which he could take leave. - Later in June 2019: Applicant applied for extended sick leave due to stress, lack of sleep and inability to focus. - July 2019: Applicant went on sick leave for the month of July and took annual leave in August 2019. - September 3, 2019: Applicant returned to the Office; later in September he traveled to Canada to renew his G4 visa. Discussion of Applicant’s APR was deferred until return from Canada. - July 2019: Leave-record review determined that for the roughly nine months he served as the Res Rep, he spent about 30% of that time outside the duty station; official data deemed incomplete because “some days away apparently were not properly accounted for.” Applicant did not dispute this accounting before the Tribunal. - October 11, 2019: Applicant took part in his APR discussion for FY2019. - October 2019 / November 4, 2019: Country X Division Chief signed the “Not Rated” APR on November 4, 2019; signature of the SPM provided on March 9, 2020. ### APR findings and management feedback - APR comments noted Applicant’s “valuable contributions,” but concluded “performance did not reach the effective level in FY2019.” Key areas of concern identified with exact language used: - Management of the local office: - “treatment of some local staff was excessively heavy-handed (e.g. raising his voice to the Driver . . . , repeated accusations of financial misdoing of the OM [Office Manager] before conducting adequate due diligence, warning his local office staff against communicating directly with HQ), while he raised expectations of others (e.g. salary of cleaner, . . .). This created an atmosphere of division and mistrust, including among local staff, which worsened steadily throughout his tenure.” - Based on “extensive feedback from local staff and the country team to the HR team, to me, and the mission chief.” Observed by other Regional colleagues. - Judgment: - “displayed poor judgment in several instances, for example in email exchanges (e.g. forwarding sensitive information to the authorities), his use of local office resources (e.g. using the office car and Driver extensively for personal reasons), and signing an official letter for an unofficial intern.” - Availability and remote working: - “limited availability at his post and frequent remote working undermined the quality of input from the local office (e.g. with less economic content and more errors in the weekly reporting, cessation of biweekly analytical notes) and the work flow of the team (e.g. with frequent rescheduling of/absence from team meetings).” - Manager’s overall view: Applicant “received extensive feedback on these points and he made some progress to address them. However, the progress was inadequate by the end of the rating period – particularly as regards management of the local office – since he did not seem to accept/internalize fully the feedback and repeatedly sought to deflect responsibility onto others. Looking forward, [Applicant] has been reassigned to headquarters, where he can capitalize better on his strengths. I wish him well in his new assignment.” - APR also included positive feedback for May 2018 to August 2018 from Applicant’s former Mission Chief: Applicant had been “a good discussion partner,” “provided good advice,” “handled financial sector issues,” “led discussions,” and was “collegial and a good team player.” ### Administrative review: HRD Director decision - June 13, 2019: Applicant filed request for administrative review of reassignment decision. - August 29, 2019: HRD Director issued memorandum with conclusions: - (a) Applicant did not receive a DRI Report because input was not received from at least three staff. - (b) While Applicant had a fiduciary duty to investigate possible misuse of office funds, he should have done so “in a more measured and calm manner, without interim accusations.” - (c) Criticisms regarding Applicant’s management approach were reasonably based on feedback from Mission team and local staff. - (d) Applicant’s availability was sometimes unpredictable; concerns about improper documentation of leave and travel; his April 2019 request for advance approval of leave “raised concerns that it would be difficult for [Applicant] to be physically present at post for a sufficient time and to be flexible enough to be there for unanticipated events that might arise.” - (e) Applicant demonstrated poor judgment and poor performance on numerous occasions. - (f) Concerns had been raised with Applicant during his assignment and he had been provided opportunities to improve. - (g) There was no evidence of racial discrimination in relation to the transfer decision. - HRD Director concluded: Res Rep roles “carry particular risks for the organization. The evidence I have seen indicates that [the Department Director’s] decision that he could not continue to take the risk of your remaining in the Res Rep role in [Country X] was taken for legitimate business reasons and for no improper purpose. It appears to have been reasonably based on evidence giving rise to concerns about your management ability, judgment, and presence at post.” - HRD Director declined to rescind the reassignment; Applicant had two months to file a grievance. ### Grievance Committee proceedings and findings - October 21, 2019: Applicant filed a Grievance contesting (a) “[u]njustified recall from Res Rep position in [Country X]”; and (b) “[u]nfair performance evaluation to justify the recall.” Relief sought included Res Rep benefits for July 1, 2019 to August 31, 2021; six years’ salary for long-term damage; rating “Effective” or above for FY2019 and associated merit increase; “clearing of his IMF performance records”; measures to repair reputation and career; reimbursement of legal and other costs. - Pre-hearing conferences: March 12 and October 26, 2020. Two consolidated issues for the Committee: - Whether recall from Res Rep post was invalid for reasons in GAO Chapter 11.03, Section 5.10. - Whether assignment of “not rated” for 2019 APR was invalid for reasons in GAO Chapter 11.03, Section 5.10. - Hearings: Oral hearings took place over six days in March 2021. 16 witnesses testified. The Grievance Committee denied Applicant’s requests for testimony by an additional 11 witnesses. - Grievance Committee Report and Recommendation (July 28, 2021) recommended denial of grievances based on findings including: - (a) Transfer was a lateral transfer governed by GAO Chapter 3.01, Sections 3 and 5. - (b) Procedural requirements for misconduct investigations (GAO Chapter 11.02) were not applicable because no allegations were referred to internal or external investigators and reassignment was not treated as disciplinary. - (c) Reassignment and “Not Rated” decisions are independent even if based on same performance problems. - (d) Failure to provide a management coach was not a procedural flaw. - (e) Applicant had sufficient prior oral and written notice of dissatisfaction. - (f) Applicant had ample opportunity to defend himself and received sufficient notice of reassignment. - (g) Applicant was given ample notice of poor performance as required by GAO Chapter 3.02. - (h) Reassignment was not based on a manifestly erroneous assessment of facts, disregard of essential facts, or improper bias. - (i) GAO Chapter 3.02, Section 6.2 did not require placement on a Performance Improvement Plan (“PIP”). - (j) Applicant was not harmed by delay in finalizing his APR. - (k) Department Director did not violate GAO Chapter 3.02 by not personally interviewing local staff. - (l) Failure to obtain positive inputs from some local staff and failure to seek input of local authorities was not an abuse of discretion. - August 24, 2021: Deputy Managing Director informed Applicant that Management accepted the Grievance Committee recommendations. ### Tribunal procedure, submissions, and document requests - November 2, 2021: Applicant filed Application with the Tribunal. Corrected and supplemented Application submitted November 13 and December 16, 2021. Application transmitted to the Fund on January 3, 2022. - Fund requested extension to file Answer; request granted on January 24, 2022. - March 4, 2022: Fund filed its Answer. April 18, 2022: Applicant filed Reply. May 23, 2022: Fund filed Rejoinder. - October 7, 2022: Applicant filed Updated Application for Costs (transmitted October 21, 2022). - September 22, 2023: Applicant filed supplemental request for fees; Fund responded September 28, 2023. - Anonymity: Applicant requested anonymity pursuant to Rule XXII(1); Fund supported the request. March 29, 2022: Tribunal granted anonymity, citing Tribunal jurisprudence and Fund’s lack of objection. - Document production: - Applicant made twenty-one document requests under Rule XVII. Fund opposed each request. - March 29, 2022: Tribunal decision (a) denied Document Requests Nos. 3-11 and 15-21; (b) requested clarification from Fund on Exhibit related to Request No. 14; (c) asked Applicant to state in his Reply whether he maintained Requests Nos. 1, 2, 12, and 13 in light of additional documents produced by Fund. - Tribunal denied Requests Nos. 3-11 and 15-21 because Fund asserted no responsive documents and Applicant did not proffer evidence to the contrary, referencing precedent in IMFAT judgments. - Request No. 14 sought “[s]creenshots of DRI invitation emails sent to all five [of] Applicant’s subordinates.” Amended Fund Exhibit 11 appeared to show copies of e-mails relating to only three of the five subordinates; Tribunal requested clarification. - March 31, 2022: Fund filed clarification asserting DRI invitations were sent to all five subordinates; clarification transmitted April 1, 2022. Applicant confirmed in his Reply that he maintained Document Request No. 14. *Source: International Monetary Fund.* ### 14. Applicant also confirmed in his Reply that he maintained Document Requests Nos. 1, 2, 12 ### j2024-1 - 14. Applicant also confirmed in his Reply that he maintained Document Requests Nos. 1, 2, 12 and 13 ### Tribunal decisions on Document Requests and evidentiary record - On November 4, 2022, the Tribunal notified the parties of its decisions to deny Applicant’s Document Request No. 14 and to grant Applicant’s Document Requests Nos. 1, 2, 12 and 13. - Document Request No. 14 (screenshots of the DRI invitation e-mails): - HR Team sent formal e-mail requests for feedback on March 16, 2019, to the local Economist, the Office Manager and the Driver; feedback was due on April 12, 2019, and a reminder was sent on April 10, 2019. - The local Economist testified before the Grievance Committee that he did not recall receiving the feedback request and that he normally ignores messages like this, believing them to be a scam. - The Cleaner testified she had received an e-mail to her private e-mail account asking for input on Applicant’s performance, thought it was “spam” and deleted it. - The Gardener was on the list of subordinates to receive an e-mail invitation; the Tribunal found no material value in confirming separately with the Gardener whether he received an invitation given other subordinates’ refusals to provide feedback. - It was noted that there must be at least three feedback providers to generate a DRI report. - All five of Applicant’s subordinates testified before the Grievance Committee and were subject to cross-examination by Applicant’s counsel. - The Tribunal considered the record sufficiently complete on the question of subordinates’ feedback and required no further documentation responsive to Document Request No. 14. - Document Requests Nos. 1 and 2 (pre-appointment process documents): - Applicant asserted false allegations formed part of a pattern aimed at preventing him from getting and keeping the Res Rep job in Country X. - The Fund objected that Applicant had waived claims regarding the pre-appointment process during Grievance Committee hearings. - Citing prior jurisprudence in Ms. “GG” (No. 2), para. 21, the Tribunal granted Requests Nos. 1 and 2 in advance of deciding admissibility, as the documents—if they existed—could be relevant to a pattern claim. - Document Requests Nos. 12 and 13 (documents underlying the administrative review decision): - Applicant argued information serving as the predicate for the administrative review decision (and reassignment and performance review decisions) had not been substantiated, rendering the administrative review decision flawed. - The Fund objected that the administrative review is an independent HRD process not reviewed by the Tribunal and alternatively argued the process afforded Applicant a right to be heard; the Fund attached documents showing HRD interviewed Applicant and reviewed documents. - The Tribunal determined it needed the totality of documents related to those decisions to assess whether reassignment and performance review decisions constituted an abuse of discretion. - The Tribunal granted Requests Nos. 12 and 13 to the extent any responsive documents existed and had not already been produced, and reserved decision on admissibility of related claims. - The Fund was requested to submit all responsive documents not already part of the record or to assert that no such documents exist. - Subsequent procedural exchanges: - On November 18, 2022, the Fund provided its Response to the Tribunal’s decision on Requests Nos. 1, 2, 12 and 13. - The Tribunal invited Applicant to comment by letter dated November 21, 2022; Applicant submitted Comments on December 2, 2022. - Applicant referenced the Tribunal’s Judgment in “TT”, IMFAT Judgment No. 2022-1 (June 30, 2022), regarding the right to be heard; the Tribunal allowed the Fund a Response strictly limited to the significance of “TT”. - On May 30, 2023, the Fund filed its Response, transmitted to Applicant on June 5, 2023; the Tribunal notified parties there would be no further pleadings in response. ### Request for oral proceedings and witness testimony; Tribunal ruling - Applicant requested oral proceedings under Rule XIII, stating availability to explain events during his tenure, to discuss moral remedy, to call back the Driver to finish her cross-examination, to call the then HRD Director to testify about alleged remarks and what she knew before the administrative review, and that an independent financial auditor may be needed regarding Office Manager’s alleged financial wrongdoings of October 2018 and January 2019. - Respondent objected, arguing Applicant’s reasons would not clarify legal issues or enhance legal appreciation of the record. - Governing provisions and jurisprudence cited: - Article XII of the Tribunal’s Statute: Tribunal shall “decide in each case whether oral proceedings are warranted.” - Rule XIII, para. 1: such proceedings held if the “Tribunal deems such proceedings useful.” - Rule XIII, para. 6: Tribunal may limit oral proceedings to oral arguments where written evidentiary record is adequate. - Mr. “RR”, para. 21: recent practice to hold oral proceedings when requested, limiting them to oral arguments of counsel; oral proceedings can clarify legal issues and probe factual disputes. - Mr. “KK”, IMFAT Judgment No. 2016-2 (September 21, 2016), para. 39 and para. 42: sufficiency of record is particularly pertinent to admitting witness testimony; it will be rare to admit witness testimony in cases from the Grievance Committee absent a showing that such testimony would be useful to clarify a material point. - Tribunal decision: - On June 5, 2023, the Tribunal granted Applicant’s request for oral proceedings “to the extent that it seeks oral arguments of counsel.” - Oral proceedings took place on August 22, 2023. ### Summary of Applicant’s principal contentions - Applicant’s principal contentions as summarized by the Tribunal: 1. The reassignment decision should not have been made until Applicant received his final APR and had a proper performance discussion; reassignment based on performance assessment should await draft APR and proper discussion. 2. Applicant was not afforded a right to be heard: - (a) review by Country X Mission Chief, Country X Division Chief and HR Business Partner was an “HR investigation” that was biased and did not afford Applicant a right to be heard; - (b) allegations were included in “secret” memoranda and e-mails never shared with Applicant and created without his knowledge; - (c) false information was discussed at the performance evaluation roundtable discussion which Applicant could not rebut; - (d) October 2019 draft APR included false and unsubstantiated allegations not part of discussions in October 2018, February 2019 and March 2019. 3. The Fund did not properly apply the FY2019 APR guidance set out in the FY2019 ATME Guidelines when assessing Applicant’s performance; record lacks clarity on who was consulted, how “invisible work” was assessed, and why those with favorable views were not consulted; of five local staff, two (the Office Manager and the Driver) lacked credibility—Office Manager alleged to have been involved in serious financial wrongdoing; Driver alleged to have lied throughout Grievance Committee testimony. 4. Applicant’s final APR was a fraudulent and forged document containing unjustified criticisms used against Applicant, including: behaviors during the September-October 2018 mission; hiring of an intern; trips to HQ for family reasons; production of the Bi-Weekly Notes; non-extension of the office lease; handling of the medical evacuation of the Office Manager; Fund failed to take into account all relevant facts, balance positive and negative factors fairly, and provide Applicant opportunity to respond. 5. False allegations against Applicant were part of a pattern to prevent him from getting and keeping the Res Rep job in Country X; Applicant never waived pre-appointment claims before the Grievance Committee. 6. The case shows strong signs of racial bias against Applicant consistent with persistent racism in the Fund; highlights larger governance issues in Applicant’s Region and the Fund regarding racial harassment, verbal intimidation and bullying, assessment of performance and handling of poor managers; Applicant never waived claims of racial discrimination before the Grievance Committee. 7. The administrative review violated Fund law because at its time Applicant had not received his final APR, had not been presented with specific allegations, and had no opportunity to respond. 8. The then HRD Director was involved in the reassignment decision and therefore should have recused herself from the administrative review. 9. The Grievance Committee committed major violations of Fund law, especially regarding Applicant’s right to be heard; it mischaracterized and ignored relevant facts and evidence and allegedly falsely insinuated that the right to be heard was restricted to investigations of the IMF Office of Internal Investigations. 10. Applicant’s requested remedies: - a. Rule that Fund law (GAO 11, Chapter 11.03, Section 4.2(ii) and Section 5.10(ii)) as applied by the Grievance Committee is not restricted to explicitly mentioned GAO content and includes unwritten sources of law referenced in the Commentary on Article III of the Statute of the Administrative Tribunal; - b. Order the Fund to update the Staff Handbook to recognize unwritten sources of law, in particular the right to be heard before adverse decisions and in connection with performance assessment and record-keeping; - c. Affirm that the Fund violated Fund law to Applicant’s detriment, including violations of rights (i) to be heard on all allegations, (ii) to proper performance discussions and records, (iii) to a proper FY2019 performance evaluation process, (iv) to a fair administrative review process, (v) to a respectful work environment, and (vi) to a fair Grievance Committee process; - d. Expunge various documents from Applicant’s records, including the administrative review memorandum, Grievance Committee report, and a “fraudulent” FY2019 APR; - e. Order the Fund to redo Applicant’s FY2019 APR and grant Applicant a rating of “Effective” or above; - f. Order the Fund to clear Applicant’s records of unsubstantiated allegations; - g. Rule that remarks by the then HRD Director and false allegations in Applicant’s records by Fund managers constitute racial discrimination; - h. Order the Fund to compensate Applicant for monetary losses, with interest, including in relation to pension, arising from reassignment and downgraded APR rating; - i. Order the Fund to pay damages equivalent to six times Applicant’s annual salary at the time of the decisions for “egregious violations” of Fund law, long-term damage to Applicant’s IMF career, significant reputational damage, and moral and intangible damages from the “harassment, disrespectful, hostile, and stressful work environment”; - j. Order the Fund to start recording APR roundtable discussions every year; - k. Order payment of legal fees and costs under Article XIV, Section 4 of the Statute if the Application is well-founded in whole or in part. ### Summary of Respondent’s principal contentions - Respondent’s principal contentions as summarized by the Tribunal: 1. There was a sufficient basis for reassigning Applicant to HQ: three equally valid and independent reasons—(a) poor management of local employees in the Country X office; (b) poor exercise of judgment in interactions with HQ and the authorities; and (c) lengthy absences from Country X for a job requiring in-country presence; any one of these would have been ample basis for the Department Director to reassign Applicant. 2. Applicant had no right to an APR discussion or report before reassignment: the relevant rule on intradepartmental reassignment does not require an employee be given his APR in advance of reassignment; reassignment can occur at any time of the year at the Department Director’s discretion; the fact reassignment decision was made during the APR process does not mean Applicant could not be reassigned before APR completion. *Tribunal judgments, notifications, and procedural filings as reflected in the Tribunal record.* ### 3. The decision to grade Applicant as “Not Rated” in his APR did not constitute an abuse ### 3. The decision to grade Applicant as “Not Rated” in his APR did not constitute an abuse ### Summary of the Tribunal’s conclusions - The Tribunal concluded that the decision to grade Applicant “Not Rated” in his APR did not constitute an abuse of discretion. - The Fund provided timely feedback of performance deficiencies and an opportunity to remedy those deficiencies. - The performance-evaluation decision was based on a balanced assessment, taken in accordance with fair and reasonable procedures, and was not based on improper motives. ### Procedural and hearing rights findings - Applicant was afforded ample opportunity to be heard regarding both the reassignment decision and the “Not Rated” APR. - The right to be heard was satisfied by giving Applicant opportunities to respond to concerns; Applicant admits he had those discussions and used the occasions to “correct the record.” - Managers are not required to disclose internal memoranda and communications to staff; such documents do not become part of Applicant’s personnel file. - Management should be encouraged to document and share candid views; a requirement to share internal documents with staff would likely discourage candid documentation. - Applicant was not subject to a misconduct investigation; instead, he was subject to an informal inquiry into his performance, so GAO Chapter 11.02, Section 5.4 (misconduct investigations) was not applicable. - The reassignment decision was discretionary and not a disciplinary measure for misconduct. ### Waivers and scope of claims - The Grievance Committee ruled Applicant waived his racial discrimination claim based on representations by Applicant’s two counsel at the hearing; as a result, those claims were not exhausted through administrative review and were not properly before the Tribunal. - The Tribunal found Applicant’s claims of racism meritless on the evidence before it: Applicant did not point to any specific statement or actions from which the Tribunal could reasonably infer a racist motive by his managers. - The Grievance Committee held Applicant waived claims about his pre-appointment as Res Rep; these claims were not reviewed by the Committee and therefore lacked exhaustion of administrative remedies. - Applicant’s own documents undermined allegations of wrongdoing in the approval of his appointment as Res Rep for Country X. ### Administrative review and Grievance Committee proceedings - The administrative review fully addressed Applicant’s claims: Applicant was interviewed and the documents he submitted were reviewed. - There was no basis to require recusal of the then HR Director; HRD’s consultations with management in advance of the reassignment decision were proper and encouraged, and Applicant could have requested recusal though there were no grounds. - The Tribunal will not act as an appellate body over the Grievance Committee; any lapses in the Committee’s proceedings are matters the Tribunal may consider in its de novo review. - The Grievance Committee record is one element of evidence and, contrary to Applicant’s claims, he was given a full opportunity to be heard before the Committee. ### Principal issues for decision (as identified by the Tribunal) - Whether the Fund abused its discretion in reassigning Applicant from his Res Rep position to a position at HQ. - Whether the Fund abused its discretion in grading Applicant “Not Rated” in his FY2019 APR. ### Nexus between reassignment and APR decisions - The reassignment decision and the APR decision are inextricably intertwined; the underlying rationale for reassignment was Applicant’s performance as Res Rep for Country X. - When Applicant requested administrative review of the reassignment, the HRD Director’s rejection focused largely on performance-related issues. ### Standard of review for managerial discretionary decisions - The Tribunal applied the standard: discretionary decisions cannot be overturned unless shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. - The Tribunal noted that emphasis among those factors depends on the nature of the contested decision and the grounds of challenge. ### Reassignment decision: arbitrariness and reasonableness - The Tribunal reviewed whether the reassignment decision was arbitrary or capricious and concluded it was not. - There is no Fund rule specifically addressing reassignment from overseas assignments; the existing transfer rule is in Staff Handbook, GAO, Chapter 3.01 (Assignment of Staff). - Section 5.1 and Section 5.2 (intradepartmental transfers) require reassignment at the same grade level and “due notice” (at least 30 calendar days’ notice unless waived). - Applicant was reassigned to a position at the same grade level; initial shortfall in notice was rectified. - Section 3.1 of GAO Chapter 3.01 requires consideration of: i. the staff member’s education, training, experience, performance, and other relevant factors; and ii. the overall interests, staffing, work requirements, and budgetary considerations of the Fund and of the department. - The record does not suggest the Fund failed to consider the factors in Section 3.01; those considerations do not restrict managerial discretion to transfer staff. - Tribunal jurisprudence recognizes broad managerial discretion to transfer or reassign staff; precedent accepts that administration can transfer staff without consent when required for organizational needs. ### Evidence supporting reasonableness of reassignment - The reassignment decision was reasonably supported by evidence of legitimate concerns about Applicant’s ability to carry out Res Rep responsibilities effectively. - A principal concern was Applicant’s frequent absence from his duty station in Country X: - Applicant had been absent from his duty station for a significant amount of time: “approximately 30%” prior to reassignment. - Applicant did not always keep his supervisor (the Country X Mission Chief) informed of travel and teleworking plans and did not maintain complete and accurate leave records. - In April 2019, Applicant requested significant time away from Country X for the upcoming two years; management (the SPM) emphasized that a plan requiring being out of the country “for around 15-16 weeks a year” and pre-committing specific leave days up to two years ahead “is not consistent” with Res Rep requirements. - The Tribunal considered the high-profile, quasi-political nature of Res Rep positions (expected to act as institutional ambassadors and trusted advisors to ministers and central bank governors); concerns about tact, diplomacy, and sound judgment can justify reassignment. ### Conclusion on reassignment - The Tribunal concluded the reassignment decision was neither arbitrary nor capricious. - Management had a reasonable basis for reassignment based on the requirements of the Res Rep position and Applicant’s performance in the role. ### Tribunal disposition regarding Applicant’s requests for relief - The Tribunal found Applicant’s requests for relief to be either unnecessary, inappropriate, frivolous or unfounded. *Source: IMF Administrative Tribunal, j2024-1.* ### 176. The Grievance Committee accepted that Applicant had waived his general claims of racial ### The Grievance Committee accepted that Applicant had waived his general claims of racial ### Scope of discrimination claims and Tribunal approach - The Grievance Committee accepted that Applicant had waived his general claims of racial discrimination but addressed Applicant’s specific claim that the performance and the reassignment decisions were improperly motivated by discrimination. - The Tribunal limited Applicant’s racial discrimination claim to the extent it asserted that the impugned decisions were tainted by discrimination or otherwise improperly motivated by discrimination; the Tribunal would not entertain Applicant’s more generalized claims of discrimination regarding himself individually or concerning the Fund more generally (paras. 176–177). - The Tribunal emphasized that it regards charges of racial discrimination with the utmost seriousness and cited IMFAT Judgment No. 2022-2 (October 25, 2022), para. 93: “Invidious discrimination on the basis of nationality has no place in an international organization. The Tribunal also appreciates that there can be professional disagreements concerning standard managerial decisions regarding grading exercises, work assignments, and promotions. These do not by themselves give rise to sustainable claims of discrimination.” ### Factual findings concerning the reassignment decision - Concerns were raised regarding Applicant’s performance and his ability to be present consistently at his duty station in Country X almost immediately after Applicant assumed his position as Res Rep and continued until the decision to reassign him to Headquarters (para. 178). - The concerns were not isolated; they were raised by multiple staff on multiple occasions (para. 178). - The Tribunal concluded Applicant did not satisfy the burden of showing the reassignment decision was tainted by discrimination or otherwise improperly motivated by discrimination; the evidence does not substantiate a causal link between the alleged irregular motive and the reassignment decision (para. 178). - Accusations initially consisted of: - (a) Applicant yelled at the Driver and was not allowing her to take meal breaks; - (b) Applicant made the Driver cry because she was not waiting for him in front of a hotel after a meeting; and - (c) Applicant micromanaged staff and was threatening at times (para. 195). - Further elaboration by the Driver included claims Applicant spoke in a “very brutal,” “inappropriate,” “excessively rude” and “very savage, wild” manner; made racist comments; refused to speak with her for a period; was “very angry and rude” regarding an office move; and was otherwise intimidating (para. 195). - The Office Manager alleged Applicant sought to undermine him and to “frame him” for financial improprieties; both the Driver and the Office Manager were purportedly reluctant to raise concerns due to fears of retaliation (para. 195). - Accusations were first made almost immediately after Applicant assumed his position in August 2018 during a mission by the acting Mission Chief (para. 196). - Two reviews were conducted in the Country X office: one in September 2018 by the Mission Chief and the HR Business Partner; and another in October 2018 by the Division Chief and the same HR Business Partner (para. 197). - The September 2018 review interviewed three of the five local staff (the Driver, the Office Manager and the local Economist, but not the Cleaner or the Gardener) and two international mission staff; the same local and international staff were interviewed during the October review (para. 198). - Contradictions and credibility concerns noted by the Tribunal: - The local Economist contradicted the Driver’s claim about the hotel incident and testified Applicant “was not annoyed” and that the situation was “a simple thing” (para. 199). - The local Economist testified Applicant was close with all staff and had never said anything that was “infuriating” (para. 199). - The Driver’s testimony that Applicant never advocated for a salary increase for her conflicted with documentary evidence showing Applicant sought a salary adjustment for the Driver in March 2019 and exchanged friendly WhatsApp messages about the issue in April 2019 (para. 200). - There are “over 20 twenty friendly and cordial WhatsApp or e-mail messages” between Applicant and the Driver from February 2019 to April 2019, including messages about pictures and repair of an office safe (para. 201). ### Was the reassignment decision based on an error of law? - Legal standard: An error of law occurs when decision-makers fail to apply the rules correctly (para. 179). - Applicant alleged three errors of law in relation to the reassignment decision: (a) a right to his APR and a performance discussion before reassignment; (b) a right to be heard regarding the accusations; and (c) a right to the summaries of performance discussions (para. 179). (a) Right to APR and performance discussion before reassignment - The Fund’s written internal law does not require that a staff member be provided with his or her APR and a performance discussion prior to a transfer or reassignment (para. 180). - GAO Chapter 3.01 requirements discussed: - (a) the affected staff member receive “due notice” of the transfer and that “the grade or established range of grades of the two positions is the same” (Section 5.2, Intradepartmental Transfers); and - (b) certain other considerations (e.g., education, training, experience, performance, interests, budget, etc.) be taken into account by management (Section 3.1, Assignment of Staff to Positions) (para. 180). - The absence of other requirements allows management flexibility to address business and staffing needs quickly (para. 180). - Nonetheless, the Tribunal held that a written performance evaluation in advance of the reassignment decision was required in the circumstances of this case (para. 181). (b) Right to be heard - The right to be heard (audi alteram partem) is regarded as generally applicable to decisions taken by international organizations, including the Fund; notice and an opportunity to be heard are essential principles of international administrative law “not only in the context of misconduct decisions but in non-disciplinary circumstances as well” (paras. 182–183). - Applicant requested the Fund update the Staff Handbook to recognize general principles of international administrative law; the Tribunal found it unnecessary to address that request in these circumstances (para. 183). - Facts relevant to due process: - Accusations by the Driver and the Office Manager triggered internal review shortly after Applicant assumed the Res Rep role and were a primary concern throughout his tenure and a main reason for reassigning Applicant (para. 184). - The SPM testified the “greatest concern” was “how [Applicant] managed and treated local staff” (para. 184). - Applicant asserts not all details of complaints were shared with him and that he only learned specifics during the Grievance Committee process; the Fund justified nondisclosure of the October 18, 2018 Memorandum to Files on confidentiality grounds—local staff “asked that [their feedback] be strictly confidential as they are afraid that [Applicant] will retaliate” and Applicant’s request for specific examples was declined “for confidentiality purposes” (para. 185). - The Fund asserted specifics were shared with Applicant via meetings between his managers and Applicant; the record does not support that assertion (para. 185). - Precedent and due process guidance: - In Ms. “C” the Tribunal concluded a supervisor’s failure to provide an opportunity to rebut accusations (including identifying the source) was a “lapse in due process” (para. 186). - The ADBAT Decision in Carl Gene Lindsey v. Asian Development Bank held that individual complaints should not be taken into account unless first brought to the attention of the accused, who should be given an opportunity of replying and, where appropriate, meeting and questioning the complainant or witness (para. 186). - Tribunal’s assessment: - Applicant had a prior strong record as Res Rep and Mission Chief in other countries; absence of prior poor management evidence cast doubt on the credibility of the accusations and should have influenced managers’ handling of them (para. 187). - Raising the issues directly with Applicant early would have allowed him to respond and could have avoided tensions that escalated over time (para. 187). - The Tribunal recognized concerns for confidentiality and protection of small-office staff but held such concerns should not override the basic requirement that, absent exceptional circumstances, staff should be able to respond to specific allegations forming a basis for decisions against them (para. 188). - Given the nature of complaints, it would have been appropriate to refer them to the office in the Fund equipped to handle confidentiality and possible retaliation while safeguarding due process (para. 188). - Conclusion: Applicant should have had an opportunity to respond promptly and fully to the accusations against him, but this was denied. This is an error of law that tainted the reassignment decision (para. 189). (c) Right to summaries of performance discussions - Applicant argued it was an error of law for the Fund not to provide him with Memoranda for Files of the October 18, 2018 and February 25, 2019 meetings and asserted an administrative practice gave rise to a legal right to APR summaries being sent to staff to confirm accuracy (paras. 190–191). - Staff Handbook, GAO Chapter 3.02 (Performance Evaluation) contemplates written feedback as part of the APR process and affords staff an opportunity to provide written feedback; however, nothing in the Fund’s internal law requires managers’ non-APR summaries of performance discussions to be shared with staff (para. 191). - There is nothing in the record to suggest the Memoranda for Files formed part of Applicant’s staff record (para. 191). - Tribunal conclusion: - No support in the Fund’s internal law for Applicant’s assertion that he should have been provided the October 18, 2018 and February 25, 2019 Memoranda for Files; the Fund’s decision not to provide the Memoranda was not an error of law (para. 192). - Nonetheless, the Memoranda for Files should have been provided to Applicant as an alternative to a written performance assessment, as a matter of fair process and transparency (para. 192). - Applicant’s broader request for a legal right to records of performance discussion meetings (including APR roundtable meetings) was not accepted by the Tribunal; deliberative documents serve managers to memorialize thoughts and staff have opportunities to present counter facts and arguments (para. 193). ### Was the reassignment decision based on an error of fact? - Legal standard: An error of fact arises when the decision-maker had the wrong facts or misinterpreted them (para. 194). - Applicant asserted “[a]lmost all allegations against [him] were false and unsubstantiated” (para. 194). - The Tribunal noted the record is voluminous with significant factual disputes, including the veracity of accusations by the Driver and the Office Manager (para. 195). - The Tribunal highlighted contradictions in testimony, documentary evidence inconsistent with some accusations, and instances where relevant questions were not posed to witnesses during the Fund’s inquiries (paras. 198–199). - Example factual disputes and evidentiary contradictions: - The local Economist’s testimony contradicted the Driver’s account of the hotel incident and stated Applicant “was not annoyed” (para. 199). - The Driver’s denial that Applicant advocated for her salary contradicted Applicant’s documented March 2019 request for a salary adjustment and WhatsApp exchanges in April 2019 (para. 200). - Despite the Driver’s claim Applicant ceased oral communication before January 2019, there are “over 20 twenty friendly and cordial WhatsApp or e-mail messages” from February 2019 to April 2019 (para. 201). ### Tribunal conclusions relevant to remedy and process - The Tribunal concluded the reassignment decision was tainted by an error of law because Applicant was denied a prompt and full opportunity to respond to the accusations that served as a basis for the reassignment (para. 189). - Although the Fund did not legally have to provide APRs or non-APR memoranda prior to reassignment under its written internal law, fairness and transparency in the circumstances required either a written performance evaluation in advance or provision of the Memoranda for Files as an alternative (paras. 181, 192). *IMF Administrative Tribunal judgment excerpts, paras. 176–201.* ### 202. The Office Manager for his part made conflicting and contradictory statements concerning ### j2024-1 - 202. The Office Manager for his part made conflicting and contradictory statements concerning ### Financial discrepancies and Office Manager credibility - FY2019 Q2 financial report prepared and submitted to HQ contained a financial discrepancy of more than US$2,000. - The Office Manager attributed the Q2 discrepancy to a banking software issue that caused a double salary payment. - The previous Res Rep later told the HQ Budget Officer that he had made a check payment to the Office Manager in the amount of more than US$2,000 for a delayed payment from the local bank due to banking software issues. - The Office Manager testified before the Grievance Committee that the previous Res Rep had given him a salary advance by check, and that he had not personally been subject to any banking software issues. - The Office Manager further testified that the banking software issue had impacted two guards and the Gardener, resulting in their receiving double salary payments; however, the Office Manager also testified that the two guards and the Gardener were paid a combined $300 per month which, when doubled and added to the Office Manager’s purported salary advance, did not equal the reported discrepancy of over US$2,000. - FY2019 Q3 report: - The Office Manager self-reported a financial discrepancy of approximately $82. - Applicant’s inspection discovered that the discrepancy was approximately US$800—i.e., ten times what was reported by the Office Manager. - Other findings: - It is undisputed that the Office Manager had not balanced the books during Applicant’s tenure as Res Rep. - The HQ Budget Officer testified that, in light of the financial discrepancies, the Finance Department had been asked to conduct an audit. - The Office Manager was later found to have engaged in misconduct based on complaints made to the Office of Internal Investigations (including by Applicant), which casts serious doubt on any statements made by the Office Manager against Applicant. - Tribunal observation: - The contradictory statements and credibility issues called into question the veracity of accusations made against Applicant by the Driver and the Office Manager. - Absent a proper and thorough investigation into the accusations, the Tribunal could not determine whether the reassignment decision was based on an error of fact. - The absence of such an investigation constituted a violation of fair and reasonable procedures. ### Procedural defects in the reassignment decision (Tribunal’s findings) - The Tribunal found the reassignment decision was carried out in violation of fair and reasonable procedures in three respects: (a) The accusations against Applicant should have been referred to the office responsible for handling such issues. (b) Applicant’s managers should have provided him a written assessment of his performance in advance of the reassignment decision. (c) As an alternative to a written assessment, Applicant should have received a copy of the October 18, 2018 and the February 25, 2019 Memoranda for Files prior to the reassignment decision. - (a) Referral to the appropriate office: - The accusations could reasonably have been considered accusations of workplace harassment. - The Country X Division Chief implicitly acknowledged this in the October 18, 2018 Memorandum to Files: “All policies on harassment apply equally to local staff as [well] as to HQ staff.” The Division Chief stated that he conveyed this message to Applicant. - The Fund maintained that Applicant’s managers were responsible for conducting an inquiry; the Tribunal held that absent a rule or policy to support that approach, it would have been more reasonable to refer the allegations to the office responsible for such matters, which has staff with relevant experience to conduct neutral and objective fact-finding inquiries and credibility assessments. - The Fund’s decision not to refer resulted in a flawed review: Applicant was not afforded a full opportunity to respond to the specific accusations and therefore did not have a timely opportunity to tell his side of the story. - Examples where managers afforded accusers the benefit of the doubt: - October 18, 2018 Memorandum to Files: Division Chief told Applicant that “both the office manager and the driver are extremely unhappy, and they have solid track records as strong performers,” without taking into consideration Applicant’s solid track record as Res Rep and Mission Chief in other countries. - February 25, 2019 Memorandum to Files: Applicant criticized for continuing “to raise accusations of financial misdoing by the [Office Manager] without taking the time to get the complete picture,” despite partial validation by the HQ Budget Officer in November 2018 and later full validation after a full investigation. - April 2019: After Applicant alerted managers to possible financial irregularities, the Office Manager wrote to the Country X Mission Chief with examples of purported actions by Applicant; the Mission Chief responded: “We are looking into this. Please hang in there.” - October 2018: The Mission Chief asked the Division Chief to call the Office Manager, stating the Office Manager was “very upset” by Applicant’s “obvious mistrust” of the Office Manager’s handling of the finances. - The record reflected tensions and potential bias that referral could have mitigated: - Obvious tensions between Applicant and the Country X Mission Chief, who was directly involved in reassignment. - The Mission Chief was worried the situation might negatively impact her ability to secure a promotion (e-mail dated October 17, 2018 expressing concern that negative feedback “would ‘hurt’ her ‘when the B list [for promotions] reopens’”). - The Deputy SPM testified the Mission Chief was “looking for being eligible for a promotion . . . in this period” and was concerned about “negative perceptions of her management.” - As early as November 2018 the Mission Chief suggested pulling Applicant back and “give him a desk job,” stating: “[M]y feeling is that we should recommend the HR team pull [Applicant] back, and give him a desk job. He is just creating too much stress for all of us.” - Conclusion: Failure to refer the accusations to the appropriate office meant the reassignment decision was not taken in accordance with fair and reasonable procedures. - (b) Written assessment of performance: - The reassignment decision and the FY2019 APR decision were inextricably intertwined; given this nexus, it would have been fair and reasonable for managers to provide Applicant a written assessment of performance shortcomings prior to reassignment so he could respond. - As of May 23, 2019 (the date the reassignment decision was conveyed), Applicant had not had a written performance evaluation that clearly set out all issues of concern. - May 23, 2019 communication: - The SPM communicated the decision orally (by phone) and in writing (by e-mail). - The e-mail set out particular performance issues (management of local staff, limited availability in the local office and adequacy of communications, judgment in handling sensitive matters with authorities). - The e-mail invited Applicant to raise “factors affecting [his] performance that we have not taken account of . . . .” but stated managers were “not prepared to continue with the risks of having [Applicant] in a field role, given the performance issues we have identified.” - Applicant was instructed to leave Country X within two weeks. - The May 23, 2019 notification did not provide details of the accusations that served as the basis for managers’ conclusions regarding Applicant’s management of local staff. - The Fund argued Applicant had ample warning via ad hoc e-mail feedback and performance discussions in October 2018, February 2019, March 2019, and a January 2019 discussion with a Deputy Director and an SPM. - Tribunal finding: Ad hoc e-mail feedback and oral discussions were not an adequate substitute for a written performance assessment with specifics in advance of the reassignment decision; failure to provide such a written assessment meant the reassignment decision was not taken in accordance with fair and reasonable procedures. - (c) Access to Memoranda for Files as alternative: - Managers prepared Memoranda for Files of the October 2018 and February 2019 performance discussions but did not share them with Applicant. - The Fund argued the Memoranda were not shared with the Front Office, were not used in connection with the reassignment or APR decision, and were only part of the litigation record at Applicant’s request. - The record showed Memoranda for Files were shared internally: - On May 15, 2019, after a departmental roundtable where the decision to reassign Applicant was made, the Country X Mission Chief e-mailed the SPM copies of the October 2018 and February 2019 Memoranda for Files. - The May 15, 2019 e-mail and Memoranda were copied to two Deputy Directors, the Country X Division Chief, the Deputy SPM and the HR Business Partner. - The e-mail stated: “Per this morning’s APR discussion, see below the process recommended by HRD . . . for reassigning [Applicant]. HRD said we needed to be careful on process, both for the purposes of fairness and potential future litigation. Please let us know your thoughts. To bring everything into one place, see attached the two memos for files [from the October 2018 and February 2019 performance discussions] . . . on performance issues and a snapshot summary of [Applicant’s] leave stats.” - The Memoranda were used to inform the reassignment process; sharing them with senior officials reinforced that the Memoranda were used by the Fund to advance its case against Applicant. - Conclusion: Although no rule required Applicant have access to the Memoranda, they should have been provided to Applicant (as an alternative to a written assessment) in advance of the reassignment and APR decisions; failure to provide them meant the reassignment decision was not taken in accordance with fair and reasonable procedures. ### Tribunal’s conclusions regarding the reassignment decision - The Fund has broad discretion to reassign staff, and there was a reasonable basis for reassignment in the present case. - Procedural failures, however, tainted the reassignment decision: - Applicant was not afforded a right to be heard in relation to the accusations raised by the Driver and the Office Manager. - The reassignment decision violated fair and reasonable procedures in three respects: - The accusations should have been referred to the appropriate office given their nature and the inability of Applicant’s Department to address them properly, and the failure to do so resulted in a flawed review. - Given the close nexus between the reassignment and APR decisions, Applicant’s managers should have provided Applicant a written assessment of his performance in advance of reassignment. - As an alternative, Applicant should have received a copy of the October 18, 2018 and February 25, 2019 Memoranda for Files in advance of the reassignment (and APR) decisions, because they were used by the Fund to advance its case and Applicant was not provided any other written assessment in advance. - These shortcomings tainted the reassignment decision and warranted the payment of compensation. ### Standard of review and approach to the APR decision - Standard of review for managerial discretionary decisions (abuse of discretion standard from the Commentary to the Tribunal’s Statute): - Discretionary decisions cannot be overturned unless they are shown to be arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. (Commentary on the Statute, p. 19.) - The abuse of discretion standard is particularly significant for assessments of an employee’s qualifications and abilities; determination of professional qualifications is a managerial responsibility. - Performance-assessment criteria (drawn from Tribunal jurisprudence and summarized in Ms. “JJ”): - (a) Whether the staff member was given adequate and timely feedback of alleged performance shortcomings, as well as an opportunity to remedy those shortcomings. - (b) Whether the performance evaluation decision was based on a balanced assessment of the staff member’s performance. - (c) Whether the performance evaluation was not vitiated by improper motives. - (d) Whether the performance evaluation decision was taken in accordance with fair and reasonable procedures. - The Tribunal emphasized that if it determines a performance assessment constituted an abuse of discretion, it may not substitute its own judgment as to what the performance rating should be. *Source: IMF Tribunal decision, paras. 202–223.* ### 224. The record reflects that for the most part Applicant was provided timely feedback regarding ### The record reflects that for the most part Applicant was provided timely feedback regarding his performance in advance of his final FY2019 APR ### Timeline and nature of feedback - Applicant’s managers held performance discussions with him in October 2018 and in February and March 2019. - Concerns regarding Applicant’s performance were communicated orally and in writing on May 23, 2019 (at the time of the reassignment decision). - Multiple written communications between Applicant and the Country X Mission Chief (and others) began in September 2018 and continued into mid-2019, during which ad hoc feedback was provided in a number of performance areas. - The most extensive contemporaneous records of performance discussions are the October 18, 2018 and the February 25, 2019 Memoranda for Files; Applicant did not receive copies of these Memoranda until the Grievance Committee process. ### Adequacy and consistency of feedback - The feedback provided consistently addressed broad themes: - management of local staff; - quality of work produced by the local office; - teamwork; - exercise of judgment; - presence in the local office. - Applicant’s final APR focused on three issues: - management of local staff; - exercise of judgment; - availability at his post. - The Tribunal observed internal inconsistencies in performance documents: - the October 18, 2018 Memorandum for Files describes Applicant as a “micromanager” while also stating that he delegates too much; - the October 18, 2018 Memorandum criticized Applicant for leaving his post in August 2018 without informing the Country X Mission Chief, yet contemporaneous WhatsApp messages show Applicant informed the Mission Chief and the Mission Chief acknowledged the message; - the February 25, 2019 Memorandum criticized Applicant’s inquiry into the Office Manager’s finances as alleging “misdeeds” that were still unproven, whereas the HQ Budget Officer had concluded in November 2018 that the Office Manager had not followed procedures. - The Tribunal concluded that these inconsistencies do not entirely undermine the overall feedback, but they call into question the seriousness with which Applicant’s performance was being managed. ### Specific inadequacies identified by the Tribunal - Management of local staff: - The record does not reflect that Applicant was provided all specifics of accusations raised by the Office Manager and the Driver, depriving Applicant of his right to be heard. - The Office Manager’s lack of credibility and contradictions by the Driver cast doubt on those accusations; therefore the feedback regarding management of local staff was incomplete and inadequate. - Because Applicant was not fully aware of the specifics, he was not in a position to remedy perceived shortcomings. - Introduction of a new issue in the final APR: - The final APR introduced the issue of Applicant’s “use of local office resources (e.g. using the office car and driver extensively for personal reasons)” as an example of “poor judgment.” - The record shows the use-of-car issue was first referenced in a May 20, 2019 internal document prepared by the Country X Division Chief that was not shared with Applicant; the issue appears to have originated from the Driver. - There is no indication the matter was brought to Applicant’s attention before the final APR; the Tribunal concluded Applicant did not have timely and adequate feedback or an opportunity to remedy that perceived shortcoming. ### Was the FY2019 APR decision based on a balanced assessment of performance? - Positive input included: - feedback from Applicant’s previous supervisor for May 2018 to August 2018; - positive input on initiatives including: - establishment of “effective working relationships with many of the main [Country X] interlocutors for the team”; - providing “helpful information exchanges to support IMF TA [Technical Assistance] on domestic revenue mobilization and fiscal transparency”; - “working with authorities to establish more concrete structural reforms in these areas to support program objectives”; - organizing an “outreach event at the university to present the fall REO”; - providing “logistical support for the mission for the Article IV [sic] and negotiation for a new PCI-supported program in spring 2019.” - Negative input focused on three key areas: - management of local staff; - poor exercise of judgment; - limited availability at post, impacting work quality from the local office. - The Tribunal found the APR was not based on a balanced assessment because: - absence of feedback from relevant staff who interacted closely with Applicant; - inclusion of unsupported criticisms; and - failure to account for additional factors that could reasonably have impacted Applicant’s performance. ### Absence of feedback from relevant staff - The HR Business Partner provided feedback by e-mail of March 30, 2019, but there is no indication it was taken into consideration in the final APR. - The HR Business Partner’s feedback included that Applicant “[h]ad a rough start in managing some local employees[,]” that “he is an advocate for his employees; had to deal with the evacuation of a local employee for medical reasons and handled it well,” and that Applicant “seeks clarity on the local Employee Guidelines to ensure proper management.” - The HR Business Partner testified she was asked during the roundtable performance discussion to “provide feedback on whether there’s more or something was missing or what the interaction has been with the HR team.” - The HQ Budget Officer engaged closely with Applicant on concerns regarding the Office Manager’s handling of local office finances, but there is no record of the Budget Officer’s performance feedback being included in the APR. - Solicitations for feedback were sent to the local Economist, the Office Manager, the Driver and the Cleaner, but they did not respond. - There is no record of feedback or solicitations from the Country X HQ team, the Country X Division Chief, or the Front Office. - The absence of performance feedback from a range of persons who interacted closely with Applicant points to a lack of a balanced APR. ### Unsupported criticisms identified in the APR - Management of local staff criticisms included: - “treatment of some local staff was excessively heavy-handed (e.g. raising his voice to the driver, repeated accusations of financial misdoing of the [Office Manager] before conducting adequate due diligence, warning his local staff against communicating directly with HQ), while he raised expectations of others (e.g. salary of [the] cleaner).” - Two criticisms (raising his voice and warning staff against communicating directly with HQ) were based on statements by the Driver (who made contradictory statements) and/or the Office Manager (whose credibility is impugned). - The record does not demonstrate Applicant was provided all specifics of complaints and thus not afforded a full opportunity to respond. - Accusation of “repeated accusations of financial misdoing of the [Office Manager] before conducting adequate due diligence”: - On October 25, 2018 Applicant sent findings of an inquiry into a financial discrepancy of over $2,000 (between the IMF ledger and the relevant bank statement) in the FY2019 Q2 report prepared by the Office Manager; there apparently was also a petty cash discrepancy of about US$1,000. - The recipients of Applicant’s findings included the HQ Budget Officer, the Country X Mission Chief, the Country X Division Chief, and two Deputy Directors. - Applicant concluded the Office Manager had engaged in conduct that rose to the level of “embezzlement, with a clear attempt to cover up the wrongdoing and mislead.” - The HQ Budget Officer characterized Applicant’s investigation as “extremely extensive” and “extremely substantive.” - The HQ Budget Officer’s subsequent review indicated the previous Resident Representative acknowledged making a check payment to the Office Manager in the amount of (some USD 2,050) which led to a double payment understood to be repaid before departure but which remained outstanding. - The previous Res Rep did not inform Applicant of the purported double salary payment prior to Applicant’s inquiry. - Applicant later discovered another financial discrepancy in the FY2019 Q3 report: the Office Manager self-reported about US$82, but Applicant found the discrepancy was ten times that amount. - The Office Manager was ultimately found to have engaged in misconduct following a full investigation. - The Tribunal noted Applicant could arguably have managed disclosure of his findings with more tact, but concluded Applicant’s inquiry was substantively significant and that managers did not appear to take into account concerns identified by Applicant before concluding he had failed to conduct “adequate due diligence.” ### Purported misuse of local office resources - The APR’s criticism that Applicant used local office resources for personal reasons appears to have originated from the Driver, who made contradictory statements. - There is no indication this matter was raised with Applicant prior to inclusion in the final APR; its inclusion calls into question the objectivity and fairness of the APR. *The Tribunal decision (paras 224–246).* ### 247. It is the obligation of the Fund, when assessing the performance of a staff member, to take ### j2024-1 - 247. It is the obligation of the Fund, when assessing the performance of a staff member, to take ### Consideration of relevant facts and resulting imbalance in APR - The Fund must take into consideration "all relevant and significant facts" that existed for the period of review (para. 247). - The Applicant’s final APR did not take into consideration several relevant and significant factors that could have impacted performance (para. 248): - inheriting a dysfunctional office; - the absence of the Office Manager for health reasons for many months (and his medical evacuation); - the move of the office to a local hotel in January 2019. - The Country X Mission Chief acknowledged the existence and seriousness of these issues in a March 6 and 7, 2019 e-mail exchange (paras. 66-67 referenced; para. 248). - Evidence indicated the Office Manager was mishandling office finances (para. 248). - Conclusion: The Fund’s failure to take these issues into account contributed to an unbalanced APR (para. 248). ### Allegation of improper motive (discrimination) - Legal principle: improper motive requires a causal link between the alleged irregular motive and the challenged decision (Mr. “F”, para. 73; Ms. “GG” (No. 2), para. 330) (para. 249). - Applicant alleged racial discrimination motivated the APR decision (para. 250). - Finding: Applicant did not establish a causal link between alleged racial discrimination and the final APR; Tribunal finds no basis to conclude the APR was motivated by racial discrimination or other improper motive (para. 250). ### Procedural fairness under Staff Handbook (GAO Chapter 3.02) — Sections 4 and 6 - Scope of Sections: - Section 4 applies to "the performance assessment included in the APR form," i.e., end-of-year performance assessment; Paragraph 4.2 permits the staff member to submit written comments on the performance assessment (paras. 252-253). - Section 6 governs management of unsatisfactory performance; Paragraph 6.2 requires managers to draw attention to unsatisfactory performance at the earliest opportunity, provide guidance, and permits (but does not mandate) initiation of a performance improvement plan (PIP) in consultation with HRD (para. 255). - Fund’s position: performance discussions during the year are informal and not governed by written rules; no internal law requires advance notice of the possibility of a "Not Rated" rating (para. 254-255). - Applicant’s procedural complaints under Sections 4 and 6 (para. 256): - (a) APR was based in part on allegations the specifics of which were not shared, denying a right to be heard; - (b) Applicant had a right to the Memoranda for Files of performance discussions; - (c) Fund failed to provide formal written guidance or place Applicant on a PIP. - Tribunal findings: - (a) and (b): Applicant was not provided opportunity to respond to specifics of accusations by Driver and Office Manager; Memoranda for Files should have been shared with Applicant in advance of reassignment and APR decisions because they were relied upon by the Fund (para. 257). - These procedural deficiencies are not, however, tied to Section 4 or Section 6 violations (para. 257). - (c): Record shows Applicant received multiple performance discussions and ad hoc written feedback beginning September 2018 into mid-2019 and was provided guidance on improvements needed; initiation of a PIP is discretionary (“may”); no indication Applicant’s performance as an economist was unsatisfactory (paras. 258). - The Fund considered Applicant’s Res Rep performance unsatisfactory and remedied this by reassigning Applicant to HQ; Applicant has performed at a very high level since reassignment (para. 258). - Conclusion: Tribunal concludes managers did not violate Chapter 3.02, Sections 4 and 6 (para. 259). ### Compliance with FY2019 Annual Talent Management Exercise (ATME) Guidelines - Context: - March 7, 2019 SPM memorandum described Department procedures for FY2019 ATME, attached ATME Guidelines, and stated the ATME aimed to review staff performance in a consistent, transparent, and fair manner, following the "suggested process" (paras. 260-261). - ATME Guidelines addressed APR timeline, Direct Report Input (DRI) process, promotions, solicitation of stakeholder feedback, and recognition of "invisible work" (para. 260). - Applicant’s ATME-related claims (para. 261): - (a) managers did not make a legitimate effort to obtain DRI feedback from local staff; - (b) managers did not seek feedback from relevant stakeholders including Country X HQ team, previous supervisors, and country authorities; - (c) managers did not consider Applicant’s "invisible work"; - (d) delays in finalizing APR prevented timely knowledge of specifics of accusations. (i) DRI process compliance - The cover memorandum stated resident representatives are expected to participate in DRI provided they have a minimum of three raters; staff would receive DRI requests by March 18 (para. 262). - Record: On March 16, 2019 HR Team sent formal e-mail requests for feedback to local Economist, Office Manager, and Driver; feedback due April 12, 2019; reminder sent April 10; they failed to provide feedback (para. 263). - Cleaner received a DRI e-mail to her private account and deleted it thinking it was spam; she would have said Applicant "was a good manager" (para. 263). - Local Economist testified he did not recall receiving the request and normally ignores such messages; Gardener was on the list but was not asked at oral hearing; four out of five subordinates clearly sent invitations did not provide feedback (para. 264). - Conclusion: No basis to claim managers failed to make sufficient effort to obtain DRI feedback from local staff (para. 265). (ii) Solicitation of feedback from other stakeholders - ATME Guidelines recommended supervisors "should seek input from the range of stakeholders" and suggested steps including asking Res Reps to list interacting functional departments and primary points of contact, requesting inputs from those contacts, involving SPMs, soliciting input from budget, HR and CD teams, and soliciting feedback from local employees; feedback from authorities to be sought "where feasible and appropriate" with supervisors using judgment on weight to give (para. 266). - Applicant contends record lacks evidence of which stakeholders were consulted and that stakeholders should have included Country X HQ team, local staff, and country authorities (para. 267). - Fund’s position: ATME Guidelines are a suggested process, not mandatory checklist (para. 267). - Tribunal analysis: - ATME language uses "should" in multiple places, indicating supervisors were expected to seek such input (paras. 268-269). - Solicitation of feedback from authorities qualified by "where feasible and appropriate"; in this case supervisors did not seek feedback from authorities and record contains no evidence that decision not to seek such feedback was unreasonable (para. 269). - There is inconsistency between the March 7, 2019 cover memorandum and the ATME Guidelines; the ATME Guidelines are not clear and may lead to differing views on the proper process (para. 270). - Fund stated orally that Country X HQ team (including Country X Division Chief and department Front Office) provided feedback, but there is no record evidence that such feedback was solicited or provided; no evidence feedback was sought from the HQ Budget Officer, though HR Business Partner testified this ordinarily should have been done (para. 271). - These omissions contributed to the Tribunal’s earlier conclusion that the APR was not a balanced assessment (para. 271-272). - Applicant’s assertion that previous supervisor’s feedback was not sought is without merit because Applicant’s APR clearly includes such feedback (para. 272). (iii) Recognition of "invisible work" - ATME Guidelines: "'Invisible work' continues to be recognized as an input to the APR"; staff expected to ensure any low-visibility work is described in their own section of the APR and supervisors to comment on such work (para. 273). - Applicant contends supervisors did not recognize his invisible work and provided examples in his Reply; Applicant defines invisible work as "all daily tasks and meetings that are not seen by HQ" (para. 274). - Tribunal finding: It was Applicant’s responsibility to include invisible work in his own APR section; having failed to do so, he cannot credibly claim supervisors should be held accountable for not considering it (para. 274). (iv) Impact of delays in finalizing APR - ATME timeline in March 7, 2019 cover memorandum characterized as "quite rigid" with deadlines (para. 275): - "Staff should complete their sections of the APR by April 10" - "Supervisors should complete the draft performance assessment by May 3" - Performance discussions: June 12 to July 12 - Staff signing off on FY2019 APR by July 30, 2019 - In this case APR was delayed; some delays attributable to Applicant; no indication other delays caused Applicant compensable harm (para. 276). *Source: IMF Administrative Tribunal judgment (excerpt).* ### 277. The decision to assign Applicant a “Not Rated” APR (and to reassign him to HQ) was ### j2024-1 - 277. The decision to assign Applicant a “Not Rated” APR (and to reassign him to HQ) was ### Timeline and procedural delays - The decision to assign Applicant a “Not Rated” APR (and to reassign him to HQ) was made on May 15, 2019. - Applicant’s performance discussion, at which time his rating was conveyed to him, took place on October 11, 2019. - Delays were attributed in large part to: - (a) Applicant took sick leave the month of July and annual leave the month of August; and - (b) after returning to the office in early September, he traveled to Canada sometime shortly thereafter to renew his visa. - In an e-mail dated September 3, 2019, Applicant stated: “Sorry. I may travel in the coming days to renew my G4 visa in Canada. I will let you know if I will be able to come for this appointment in a few days.” - Applicant appears to have returned to HQ on October 9, 2019; his APR discussion occurred October 11, 2019. - The Country X Division Chief signed the “Not Rated” APR on November 4, 2019. ### Final APR generation and signature - The computer-generated departmental signature of the SPM was not provided on the APR until March 9, 2020. - The Fund stated the absence of a final APR came to light only when Fund counsel followed up with the HR team after realizing Applicant’s APR exhibit (before the Grievance Committee) was not the final system-generated version. - The Fund asserted the final APR may have become held up in the system because the SPM responsible for Applicant’s APR had assumed another position, and that Applicant would have been the only person aware of the delay yet chose not to bring it to HR. - The Tribunal found no evidence that the delay was intentional or that it harmed Applicant: - Applicant was apprised of his performance assessment and rating in October 2019. - There are no differences between the October 2019 version and the March 2020 final version. - Applicant remained fully employed by the Fund and was able to pursue grievances through administrative review, the Grievance Committee, and the Tribunal. - The Fund was within its discretion not to participate in mediation; mediation requires both parties’ agreement. - Applicant’s allegation that the final APR was “a ‘fraudulent document with a forged signature’” because it was not signed by the SPM responsible for Applicant’s APR was rejected: - The SPM testified before the Grievance Committee that he did not recall signing the APR, that he was no longer SPM at that time, and that the system perhaps included his name because he had been SPM in June or July 2019. - The Tribunal had no reason to doubt this explanation. ### Tribunal’s findings regarding the APR decision - The Tribunal concluded the Fund abused its discretion in finalizing Applicant’s FY2019 APR because: - Applicant was not provided adequate feedback regarding some identified performance shortcomings or an opportunity to remedy those shortcomings. - The APR was not based on a balanced assessment of Applicant’s performance: - Although both positive and negative input were included, the APR did not reflect that performance feedback from all relevant staff was either sought or taken into consideration or sought. - Certain criticisms of Applicant’s performance are unsupported. - The APR did not take into account factors that reasonably could have had an impact on Applicant’s performance. - In light of these deficiencies, Applicant’s FY2019 APR is vitiated. ### Pre-appointment process issues - Jurisdictional principles: - Pursuant to Article II, Section 1(a), of its Statute, the Tribunal is competent to pass judgment on applications by staff members challenging the legality of an administrative act adversely affecting them; “administrative act” is defined as “any individual or regulatory decision taken in the administration of the staff of the Fund.” See Article II, Section 2(a). - The Commentary on Article II, Section 2, explains that to invoke the Tribunal’s jurisdiction a “decision” must be identified in the application. - Procedural history and scope: - Applicant did not challenge any pre-appointment decisions before the Grievance Committee. - During pre-hearing conferences the Grievance Committee ruled there would be no discovery or questions related to the time prior to Applicant’s appointment as Res Rep for Country X, because it did not have jurisdiction to assess pre-appointment issues; such issues were “only useful to us if [they were] relevant to the question of whether or not there was a proper factual basis to terminate your Res Rep post.” - Applicant’s counsel stated before the Committee that they did “not anticipate going into the appointment process except to the extent that it would bear on establishing that the decision violated the Fund’s rules based on erroneous facts or is otherwise directly relevant to the issues before the Committee.” An objection to pre-appointment evidence was sustained. - Tribunal assessment of Applicant’s pre-appointment assertions: - Applicant alleged pre-appointment false allegations formed part of a pattern aimed at preventing him from getting the Res Rep job and keeping it. - The Tribunal found these assertions without merit: - Applicant was selected unanimously by a panel that included the Deputy SPM and the Country X Mission Chief. - The record reflects some delays by the Country X Government in processing papers for Applicant’s appointment, but these delays were slightly less than those experienced by Applicant’s predecessor and successor; nothing in the record supports a finding the delays were intentional. - Applicant’s claim that “malicious managers decided to undermine him and spread false allegations about him very early on to have him removed as soon as possible after their obstruction to his appointment did not succeed” was unpersuasive given unanimous selection by the panel that included his soon-to-be supervisor. ### Administrative review and Grievance Committee process findings - Applicant’s claims regarding administrative review: - Applicant argued at the time of administrative review he had not received his final APR, had never been presented with specific allegations against him, and had not been given an opportunity to be heard; he also argued the then HRD Director was involved in the reassignment decision and therefore should have recused herself. - Applicant’s claims regarding the Grievance Committee: - Applicant asserted he was denied a right to be heard, that the Committee made false insinuations and factual errors, mischaracterized and ignored evidence, and acted like Fund lawyers rather than impartial decision-makers by allowing new testimonial evidence from the Fund to build its case de novo during the hearing. - Applicant sought expungement of the Grievance Committee’s Report and accountability for alleged “deliberate violations of basic requirements of legal proceedings.” - Tribunal’s legal framework and review: - Article V, Section 1, of the Tribunal’s Statute requires exhaustion of “all available channels of administrative review” before coming to the Tribunal; within the Fund these channels principally consist of requests for administrative review to the HRD Director followed by filing a grievance with the Grievance Committee. - Where dissatisfied with the Grievance Committee outcome, a staff member may file an application with the Tribunal following final decision by Fund Management on the Committee’s recommendation. - The Tribunal conducts a de novo review of challenged administrative acts. - The Tribunal does not function as an appellate body to the Grievance Committee; it reviews de novo and makes findings of fact and law. - The integrity and fairness of administrative review and Grievance Committee processes are important; material withholding of information that impairs a staff member’s record is a principal concern. - Tribunal’s factual assessment of procedures in this case: - The Tribunal reviewed the administrative review and Grievance Committee records and found no evidence demonstrating the channels of review were materially impaired. - At both the administrative review and Grievance Committee stages, Applicant was provided an opportunity to be heard, to present evidence, and (before the Grievance Committee) to call witnesses. - The then HRD Director was involved in the decision to reassign Applicant and later conducted the administrative review; the Tribunal opined the HRD Director should have considered recusing herself due to substantive involvement. - The Tribunal cited ILOAT Judgment No. 3958 (December 6, 2017), para. 11, on conflict of interest: “A conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest.” - Any lapses in the evidentiary record may be rectified by the Tribunal pursuant to Article X of its Statute and Rules XVII and XIII of its Rules of Procedure to order production of documents, request information, and hold oral proceedings. - The administrative review decision and the Grievance Committee recommendation are not part of Applicant’s personnel record; therefore there is no basis to Applicant’s request that these documents be expunged. - The Tribunal dismissed Applicant’s assertions concerning the administrative review and Grievance Committee processes. - Systemic issues concerning the dispute resolution system more generally are for the Fund’s policy-making organs to address. ### Conclusions of the Tribunal (paras. 300; enumerated) - For the reasons elaborated above, the Tribunal concludes as follows: 1. The Fund had a reasonable basis for the reassignment decision. However: - Applicant was not afforded a right to be heard in relation to the accusations raised by the Driver and the Office Manager against him. - The reassignment decision was carried out in violation of fair and reasonable procedures in three respects: - (a) The accusations—given their nature and because Applicant’s Department was unable to address them properly—should have been referred to the appropriate office, and the failure to do so resulted in a flawed review. - (b) In light of the close nexus between the reassignment and APR decisions, Applicant’s managers should have provided Applicant a written assessment of his performance in advance of the reassignment decision. - (c) Applicant, in the alternative, should have received a copy of the October 18, 2018 and the February 25, 2019 Memoranda for Files in advance of the reassignment (and APR) decisions, not only because they were used by the Fund to advance its case against Applicant, but because Applicant was not provided any other written assessment in advance of the reassignment. - These shortcomings tainted the reassignment decision and warrant the payment of compensation. 2. The Fund abused its discretion in finalizing Applicant’s FY2019 APR. Specifically: - Applicant was not provided adequate feedback regarding some of the identified performance shortcomings or an opportunity to remedy those shortcomings. - The APR was not based on a balanced assessment of Applicant’s performance: - Performance feedback from relevant staff was not taken into consideration or sought; - Certain criticisms of Applicant’s performance were unsupported; - The APR did not take into account factors that reasonably could have had an impact on Applicant’s performance. - In light of these deficiencies, the APR is vitiated. 3. Applicant’s claims of racial discrimination are properly before the Tribunal only to the extent the claims apply specifically to the impugned decisions, i.e., that the challenged decisions were tainted by discrimination or were otherwise improperly motivated by discrimination. However: - Applicant has not satisfied his burden of showing that the reassignment or the APR decisions were either discriminatory or otherwise improperly motivated. *Source: Tribunal conclusions and findings in the IMF document excerpts (paras. 277–300).* ### 4. Applicant’s claim regarding the appointment process is properly before the Tribunal ### 4. Applicant’s claim regarding the appointment process is properly before the Tribunal ### Scope of Applicant’s appointment-process claim - The appointment-process claim is properly before the Tribunal only to the extent the Applicant asserts that the appointment process was part of a pattern of conduct related to the decisions he is challenging. - The Tribunal finds the Applicant’s assertions on this point to be without merit. - There is no evidence demonstrating that the channels of review were materially impaired. - At both the administrative review and the Grievance Committee stages, Applicant was provided: - an opportunity to be heard; - an opportunity to present evidence; - (before the Grievance Committee) an opportunity to call witnesses. - The administrative review and Grievance Committee proceedings are not dispositive regarding matters before the Tribunal, which makes its own findings of fact and legal conclusions. ### Remedies framework applied by the Tribunal - The Tribunal’s remedial authority for challenges to individual decisions is found in Article XIV, Section 1, of the Tribunal’s Statute: - “If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision.” - The Tribunal’s jurisprudence identifies three broad categories of remedial powers: - rescission of the contested decision, together with measures to correct the effects of the rescinded decision through monetary compensation or specific performance; - compensation for intangible injury resulting from procedural failure in the taking of a sustainable decision; - compensation to correct the effects of intangible injury consequent to the Fund’s failure to act in accordance with its legal obligations in circumstances where there may be no decision to rescind. ### Tribunal findings on the contested decisions - Reassignment decision: - The Tribunal concluded Applicant did not prevail on his claim that the Fund abused its discretion in reassigning him from his Res Rep position to a position at HQ. - Nevertheless, the reassignment decision was marked by procedural failures that warrant an award of compensation for intangible injury. - FY2019 APR decision: - The Tribunal concluded Applicant prevailed on his claim that the Fund abused its discretion in grading him “Not Rated” in his FY2019 APR. - The FY2019 APR decision is rescinded and shall be expunged from Applicant’s personnel record. - The Tribunal found that, due to the passage of time, it would be neither practical nor appropriate to order the Fund to redo Applicant’s FY2019 APR. - Applicant’s requests for specific remedial relief: - Applicant requested the Tribunal to order the Fund to grant him the rating of “Effective” (or above) for the FY2019 APR and to award monetary compensation for losses, including pension-related losses. - The Tribunal reiterated that, where a performance assessment constitutes an abuse of discretion, it may not substitute its own judgment as to the appropriate performance rating nor speculate about monetary consequences of the rescinded APR. - Accordingly, compensation for intangible injury is the appropriate remedy to “correct the effects of that [rescinded APR] decision.” (Statute, Article XIV, Section 1.) ### Procedural failures identified - Failures related to the reassignment decision: - (a) Applicant was not afforded a right to be heard regarding the accusations raised by the Driver and the Office Manager. - (b) The accusations should have been referred to the appropriate office given their nature and the Department’s inability to address them properly, and failure to do so resulted in a flawed review. - (c) Because of the close nexus between the reassignment and APR decisions, Applicant’s managers should have provided a written assessment of his performance in advance of the reassignment decision. - (d) Alternatively, Applicant’s managers should have provided Applicant with copies of the October 18, 2018 and the February 25, 2019 Memoranda for Files in advance of the reassignment (and APR) decisions. - These failures breached Applicant’s legitimate expectations that the Fund would not take a performance-based decision to reassign a staff member from an overseas post to HQ without a fair opportunity to answer accusations and without advance written performance assessment or relevant documents. - Failures related to the FY2019 APR decision: - (a) Applicant was not provided adequate feedback regarding certain identified performance shortcomings or an opportunity to remedy those shortcomings. - (b) The APR was not based on a balanced assessment because: - (i) the APR did not reflect that performance feedback from relevant staff was taken into consideration or sought; - (ii) certain criticisms of Applicant’s performance were unsupported; - (iii) the APR did not take into account factors that reasonably could have had an impact on Applicant’s performance. - These failures breached Applicant’s legitimate expectation that the Fund would assess performance in a fair and balanced manner. - Aggravating and mitigating factors: - Aggravating factor: the procedural failures in the reassignment decision were compounded by grading Applicant “Not Rated” in the FY2019 APR, which had the potential for longer-term consequences on career advancement and salary level. - Mitigating factor: Applicant’s continued employment with the Fund, where he has remained in good standing since his reassignment. ### Compensation for intangible injury - For intangible injury consequent to: - the procedural failures in taking the reassignment decision; and - to correct the effects of the Fund’s abuse of discretion in taking the FY2019 APR decision; - The Tribunal awards Applicant compensation in the sum of nine (9) months’ net salary as at the time of the reassignment decision. ### Legal fees and costs — statutory basis and evidentiary approach - Article XIV, Section 4, of the Tribunal’s Statute provides: - “If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant’s counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.” - Procedural practice and principles: - The Tribunal’s practice does not require probing whether an applicant has already made payment for legal representation or details of contractual obligations with counsel, absent unusual circumstances. - All fee awards must be “reasonable.” “VV” (No. 2), para. 110. - Compensable fees and costs include representation in administrative review channels (including the Grievance Committee). - A measure of proportionality applies where an applicant is successful only in part; the Tribunal weighs the “relative centrality and complexity” of various claims and the degree of success. - The Tribunal considers the necessity and relevance of legal work and the role of the record assembled by counsel in its decision-making. ### Applicant’s fee requests and the Fund’s position - Applicant’s submissions and claims: - Applicant submitted documentation supporting his fee request with his Reply of April 18, 2022, an Updated Application for Costs of October 7, 2022, and a Supplemental Fee Application of September 22, 2023. - Applicant seeks legal fees and costs in the amount of $172,775. - Of this sum, $160,462.50 represents fees billed for representation before the Grievance Committee that were unreimbursed. - $12,312.50 in legal fees were billed for Applicant’s representation before the Tribunal. - Applicant further claimed $483 in parking fees incurred in connection with his Grievance. - Fund’s arguments: - The Fund argued that an applicant must show proof of payment or liability (e.g., fee agreement) to establish fees were actually incurred and that the invoices submitted were incomplete and inadequate. ### Tribunal’s assessment and awards for legal fees and costs - The Tribunal’s reasoning: - Requiring proof of payment or contractual details would undermine Article XIV, Section 4’s purpose of increasing access to the Tribunal for aggrieved staff members. - Fee awards must nonetheless be reasonable. - Where an applicant prevails only in part, the Tribunal applies proportionality, considering centrality and complexity of claims and counsel’s role. - Application to the instant case: - Applicant prevailed on one of two principal claims (abuse of discretion in grading “Not Rated” in FY2019 APR). - Applicant did not prevail on the reassignment claim, though procedural failures were found. - Claims regarding the pre-appointment process and administrative review and Grievance Committee processes were not sustained. - Fee awards: - The Tribunal awards Applicant $8,000 in legal fees and costs associated with representation before the Tribunal. - This takes into account the large number of documents (in excess of 10,000 pages) submitted by Applicant, many of which were not relevant to the Tribunal’s consideration or were related to claims not sustained. - The Tribunal awards Applicant $90,000 in legal fees and costs related to his Grievance before the Grievance Committee, where he raised the same claims on which he prevailed or partially prevailed before the Tribunal. - Total legal fees and costs awarded: $98,000, a sum which includes the unreimbursed fees and costs incurred in the Grievance Committee proceedings. ### Final decision and orders - The Administrative Tribunal of the International Monetary Fund unanimously decides: 1. “WW” has not prevailed on his claim that the Fund abused its discretion in reassigning him from his Res Rep position to a position at HQ. That reassignment decision is sustained. 2. “WW” has prevailed on his claim that the Fund abused its discretion in grading him as “Not Rated” in his FY2019 APR. That decision is rescinded, and “WW”’s FY2019 APR shall be expunged from his personnel record. 3. Additional complaints of “WW” relating to the pre-appointment process and the administrative review and Grievance Committee processes are not sustained. 4. “WW” shall be awarded compensation in the amount of nine (9) months’ net salary as at the time of the reassignment decision for intangible injury: - (a) consequent to the Fund’s failure to afford Applicant a right to be heard in relation to the accusations raised against him 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. 5. All other claims for relief are denied. 6. The Fund shall pay “WW” $98,000 for legal fees and costs incurred by “WW” in this case, a sum which includes the unreimbursed fees and costs incurred in the Grievance Committee proceedings. - Signatories: - Nassib G. Ziadé, President - Deborah Thomas-Felix, Judge - Maria Vicien Milburn, Judge - Celia Goldman, Registrar - Decision location and date: - Washington, D.C. - February 12, 2024 --- _Source: https://www.imf.org/-/media/files/imfat/j2024-1.pdf_