KAPLAN v. USA

Filing 130

REPORTED OPINION. Signed by Senior Judge Eric G. Bruggink. (ew) Copy to parties.

JSn tbe Wniteb ~tates Qeourt of jfeberal Qelailns
No. 14-67C
(Filed: June 30, 2017)
(Re-filed: August 3, 2017) 1

****************************

FILED
AUG . 3 2017

KATHLEEN KAPLAN,

OSM
U.S. COURT OF
FEDERAL CLAIMS

Plaintiff,
E qual Pay Act; 29 U .S.C. §
206(d)(l); Merit system.

v.
THE UNITED STATES,

Defendant.

****************************
Kathleen M Kaplan, Arlington, VA, pro se.
Daniel K. Greene, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, DC, with whom were Chad A.
Readier, Acting Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Reginald T Blades, Jr., Assistant Director, and Deborah A. Bynum,
Assistant Director for defendant.
OPINION
BRUGGINK, Judge.
Plaintiff, Dr. Kathleen Kaplan, appearing pro se, filed her complaint on
January 27, 2014. Plaintiff is a former employee of the Air Force Office of
Scientific Research ("AFOSR"), which is part of the Air Force Research
Laboratory ("AFRL"). She brings this suit under the Equal Pay Act. 29 U.S.C.

1

This opinion was originally issued under seal pursuant to the protective order
entered in this case. Defendant timely offered proposed redactions, but
plaintiff did not submit any proposed redactions to chambers. We adopt
defendant's proposed redactions because we find them to be appropriate.
Those redactions are indicated herein with brackets.

§ 206( d)( 1) (2012). She contends that while she was employed at AFOSR, she
was paid less than males doing comparable work. She claims that she is
entitled to additional pay beginning in 2011. We held a three-day trial from
December 6 to December 8, 2016. After post-trial briefing, the matter is ready
for disposition. Because the government has demonstrated that it had in place
a merit system that explains the differential in pay, the Laboratory Personnel
Demonstration Project, we find against plaintiff. In reaching our finding in
favor of the government, we are mindful that Dr. Kaplan appears prose.
BACKGROUND
Dr. Kaplan is trained as a computer scientist. She earned three degrees
in computer science: a B.S. from the University of Massachusetts Lowell, a
M.S. from the Florida Institute of Technology, and a D.Sc. from George
Washington University. Trial Transcript ("Tr.") 46; PX 121. 2 Dr. Kaplan
spent a number of years in academia before moving to AFOSR in August of
2005.
I. The Air Force Office of Scientific Research

The AFOSR, part of the Air Force Research Laboratory, manages the
research investment for the United States Air Force. AFOSR's mission is to
"[ d]iscover, shape, and champion basic science that profoundly impacts the
future Air Force." PX 145 at KAPL005102. In large part, the agency pursues
its mission by directly funding research by others as well as through certain
scholarship and outreach programs. Over the years, the agency has undergone
several reorganizations. The most recent occurred in 2013 and resulted in
AFOSR changing from having three "directorates"-the Physics & Electronics
Directorate; the Mathematics, Information, & Life Sciences Directorate; and
the Aerospace, Chemical & Material Sciences Directorate-to five
"divisions," namely, Dynamical Systems & Control; Quantum & NonEquilibrium Processes; Information, Decision, & Complex Networks;
Complex Material and Devices; and Energy, Power, & Propulsion.
II. Dr. Kaplan and Her Alleged Comparators

2

"PX" refers to admitted exhibits offered by plaintiff; "DX" refers to admitted
exhibits offered by defendant.
2

During her tenure at AFOSR, she held three different positions. She
began in 2005 as a program manager, which she held from her hire date until
January of2011. Tr. 53. As the result of an Equal Employment Opportunity
settlement, Dr. Kaplan left her program manager position and became the
deputy director of the Physics & Electronics Directorate on January 10, 2011.
Tr. 67. She held her deputy director position until AFOSR completed the 2013
reorganization, which resulted in her assuming a program officer position in
the Information, Decision, & Complex Networks division in February of2013.
Plaintiff claims that she is entitled to an increase in pay based on her
performance in these three positions. Because of the lapse of time between
performance, evaluation, and the time for which pay increases became
effective, the relevant performance assessment cycles began in October 2009.
Dr. Kaplan offers six male comparators~men who she argues received
more pay while performing work that required substantially equal skill, effort,
and responsibility. Her alleged comparators, two for each position, are Dr. Wu
and Dr. Schlossberg for her program manager position, Dr. DeLong and Dr.
Blackwood for her deputy director position, and Dr. Bonneau and Dr.
Nachman for her program officer position. Defendant does not concede that
these men are proper comparators, even if they might have shared a title with
plaintiff, because their work did not involve equal skill, effort or responsibility.
Defendant also argues that the agency used a merit-based system that linked
pay to performance, thus providing a reason for the difference in pay
regardless of whether the comparators' work involved equal skill, effort, or
responsibility. In view of the importance of the agency's novel system of
linking pay to performance, known as the Laboratory Personnel Demonstration
Project, we begin with an extensive description of that program.
III. The Laboratory Personnel Demonstration Project
The AFRL replaced the General Schedule ("GS") compensation system
with the Laboratory Personnel Demonstration Project (the "Lab Demo") in
March 1997, hence it was in place throughout plaintiffs employment period
and its effects would have been reflected in the pay Dr. Kaplan received at the
commencement of the years at issue here. Tr. 547. As described in AFRL
Manual 36-104 (the "Manual"),3 the Lab Demo "is an improved personnel

3

Dr. Kaplan testified that she had access to the Manual and was aware of the
Lab Demo system at all times relevant to this litigation. Tr. 157.
3

management system which provides laboratory management, at the lowest
practical level, the flexibility, authority, and control to achieve a quality
workforce and laboratory." PX 50 at KAPL00023 8. 4 In relevant part, the Lab
Demo replaced the GS 1-15 grade levels used commonly across federal
civilian employment with four broadband levels, DR-I through DR-IV, with
DR-IV being the highest grade and equivalent to GS-15. Id. at KAPL000241.
Dr. Kaplan and each of her alleged male comparators took part in what is
known as the "DR pay plan," which is specific to AFRL scientists and
engineers ("S&E"). Id. at KAPL000238.
In order to "provide an effective, efficient, and flexible method for
assessing, compensating, and managing the laboratory workforce," the Lab
Demo implements what is known as a contribution-based compensation system
("CCS"). Id. A contribution is the "measure of the value of what an employee
accomplished." DX 5 at AFKAP032215. As opposed to simply judging an
employee's performance, in assessing an employee's contribution, the focus
is on the positive impact an employee's actions have with respect to advancing
"the purpose, vision, mission, and objectives of the organization," here, theAir
Force. Id. That is, the system seeks to "[n]ever confuse motion with
progress," Tr. 838 (Dr. Christian), nor is mere longevity rewarded for its own
sake.
Every year, S&E employees are assessed and given scores by their
supervisors based on four factors: problem solving, communication,
technology management, and teamwork and leadership. Each factor has a
corresponding descriptor-often referred to as a "rubric"-that describes the
expected level of work specific to the S&E career path and an employee's
particular broadband level. These rubrics are published in the AFRL Manual
36-104, to which the employees have access. PX 50 at KAP000353-56; Tr.
157. In a process described in more detail below, the four factor scores are
averaged to determine an employee's Overall Contribution Score ("OCS"),
which, in conjunction with the standard pay line ("SPL"), 5 serves as the
4

The page citations for exhibits refer to the Bates pages provided during
discovery.

5

The SPL relates an employee's contribution to basic pay for a given year. It
is expressed on a graph with possible contribution scores along the x-axis and
potential annual basic pay amounts along the y-axis. The SPL is a straight line
with a positive slope and can be used to determine an employee's expected
4

primary basis for individual pay increases beyond an employee's then-current
pay. In theory, the CCS allows Lab Demo employees to more quickly reach
the equivalent of a GS-15/ step-10 than under the GS system, if their
contributions merit such a progression.
There are also two types of bonuses that are available to Lab Demo
employees. The broadband IV bonus is used when an "employee's OCS
indicates that he/she should receive a base pay increase that would place
him/her over the GS-15/step-10 pay cap." 6 Id. at KAPL000310. What is
referred to as the CCS bonus is used "to recognize unsustainable contributions,
[for example if! the employee had an opportunity in a given year that's not
going to last ... they might be recognized with a CCS bonus." Tr. 579. This
gives the employee's supervisors the ability to reward a one-off contribution
without increasing the employee's expected OCS for the next cycle.
According to the Manual, "[t]he annual CCS assessment scoring
process begins with input from the employee, which provides an opportunity
to state the perceived accomplishments and level of contribution." PX 50 at
KAPL000280-81. The assessment cycle begins on October 1 and ends on
September 30 of the following year. Id. at KAPL000281. For example, an
assessment cycle that runs from October 1, 2016 to September 30, 2017 would
determine an employee's pay for the 2018 calendar year. For that reason, the
pay Dr. Kaplan received in January 2011, the beginning of what she asserts is
the relevant limitations period, was a reflection of the prior operation of the
Lab Demo from 200 5 through 2009, insofar as her performance was evaluated.
At the beginning of the cycle, supervisors are directed to "provide the
broadband level descriptors, factors, and key elements to employees, as well
as discuss expectations for the upcoming assessment period so that employees
!mow the basis on which their contribution will be assessed." Id. The Manual
also dictates that there be a mid-cycle review in April or May of a particular
cycle. "At this time, the employees' contributions to the mission will be
OCS, given her current salary, as well as to determine whether an employee
is over-, under-, or equitably compensated, given her actual contribution. An
employee is considered equitably compensated if her pay is within 0.3 OCS
above or below the SPL. PX 50 at KAPL000279.
6

We note that Dr. Kaplan never received a score high enough to warrant a
broadband IV bonus.
5

discussed, as well as future professional development and career opportunities.
. . . The supervisor completes the AFRL Form 279, CCS Feedback, to
facilitate and document the mid-cycle review." Id.
The scoring process occurs during the end-of-cycle assessment, which
begins when the employee performs a self-assessment, summarizing their
contributions in a way that "reflect[s] the impact or result of each activity
rather than just listing the activity itself." Id. These self-assessments are then
reviewed by the employee's first-level supervisor as he or she creates a
preliminary assessment, which "is determined using the employee input, to
include any team participation, and the supervisor's personal knowledge of the
employee's overall contribution to the laboratory mission." Id. at
KAPL000282.
The first-level supervisor then takes the preliminary assessment to the
First-Level Meeting ofManagers ("First-Level MoM"), the opportunity for an
employee's first-level supervisor and first-level supervisors of similar
employees to "meet with their respective second-level supervisor to review and
discuss preliminary assessments, refine them into numerical CCS factor scores,
and adjust any factor write-ups based on results of the meeting." Id.
As mentioned above, each factor has a corresponding set of descriptors,
or a rubric, that describes the expected contribution specific to the four
broadband levels. Supervisors are to use these rubrics in their evaluations.
Factor scores can range from 0.0 to 5.9. Contributions that are assessed to
con-espond with the descriptors associated with the level I broadband receive
a score within the range of 0.75 to 1.9. "Contributions meeting level II
descriptors are assessed at scores of 2.0 to 2.9, and so forth." Id.
Contributions that fail to meet the descriptors for a level I contribution receive
a score of 0.0; similarly, contributions relevant to a specific factor that exceed
expectations for level IV can receive a score as high as 5.9. In other words,
contributions beyond what is expected for an employee at that level are more
highly leveraged in terms of scoring.
The four factor scores are averaged to reach an employee's OCS. The
Manual provides that
[t]he maximum compensation for broadband level IV is the GS15/Step-l O salary and equates to a total OCS of just below 4.9.
If the average ofCCS factor scores exceeds 5.25, the total OCS
6

will be set to 5 .25 with the individual identified to upper
management as having exceeded the maximum contribution
defined by the broadband. However, contribution exceeding the
level IV descriptors would not commonly occur.
Id.

After the First-Level MoM, the Pay Pool Manager ("PPM") takes part
in what is referred to as the "PPM MoM." "The purpose of this meeting is .
. . to ensure consistent application of the CCS process . . . ." Id. at
KAPL000283. The PPM may direct subordinate supervisors to take a second
look at scores ifhe or she finds that the CCS process has not been consistently
applied. The PPM approves the scores after they have been finalized.
Once the PPM has approved and finalized all assessments, the firstlevel supervisors are then required to conduct assessment feedbacks with the
employee being evaluated. Id. The feedback session is expected to include "a
discussion of the contribution statements, factor scores, OCS, developmental
and career opportunities, and expectations for the upcoming cycle." Id. A
copy of the "Annual Contribution Evaluation Form," known as "AFRL Form
280," is then given to the employee. The AFRL Form 280 "documents
decisions made during the MoM to include factor write-ups and factor scores."
Id. The grievance period begins after the employee receives his or her AFRL
Form 280.
In the absence of a successful grievance, the employee's actual OCS is
then compared to her "expected OCS," in order to determine whether she is
being properly compensated. As mentioned above, the Standard Pay Line can
be used to generate an employee's expected OCS by determining the OCS
score that correlates with the employee's current basic pay. Ifan employee's
actual OCS is greater than their expected OCS, they are eligible for an increase
in pay based on their increased contribution.
The following tables demonstrate the expected OCS, actual OCS, delta
OCS, and resulting pay for Dr. Kaplan and each of her comparators for the
relevant time periods. Given that Dr. Kaplan twice changed positions several
months into an assessment cycle, there is some overlap between the three
tables. The salary amount indicated is for the calendar year immediately
following a particular assessment cycle.

7

Program Manager
Assessment
Cycle

Expected

Actual

Delta

ocs

ocs

Resulting
Base
Salary

ocs

Total CCS and
Broadband IV
Bonuses

Dr. Kaplan
10/011099130110

[ ]

[ ]

[ ]

10/01/109/30/11

[

l

[ l

[ l

[

[]

]

[

l

[l

[

l

[ ]

Dr. Schlossberg

l

10/011099130110

[

l

[

10/01/109130111

[

l

l

[

[ l

[ l

[l

[

[ ]

]

[ ]

Resulting
Base
Salary

Total CCS and
Broadband IV
Bonuses

Dr. Wu
10/011099130110

[

l

[

l

[ l
NIA

10/01/109/30/11
PX 22, 29, 31, 32, 175; DX 100.

Deputy Director
Assessment
Cycle

Expected

Actual

Delta

ocs

ocs

ocs

Dr. Kaplan
I 0/01/099130110

[

l

[

l

[

8

l

[

l

[ ]

10/01/109/30/11

[

]

]

[

[ ]

[

]

[]

10/01/119/30/12

[]

[ ]

[ l

[

]

[]

10/01/129/30/13

[l

[]

[]

[

]

[]

Dr. Blackwood
10/01/099/30/10

[ l

[ ]

[ ]

[

]

[ ]

10/011109/30/11

[

]

[

]

[ ]

[

]

[ ]

10/011119/30/12

[

]

[

]

[ ]

[

]

[]

10/01/129/30/13

[ ]

[

]

[]

[

]

[]

Dr. DeLong
10/01/099/30/10

[ ]

[

]

[]

[

]

[

]

10/01/109/30/11

[

]

[

]

[]

[

]

[

]

10/01/119/30/12

[

]

[

]

[]

[

]

[

]

10/01/129/30/13

[

]

[

]

[

]

[

]

[

]

Px 9, 10, 18, 19, 24, 25, 26, 27, 28, 31, 32; DX 100.

9

Program Officer
Assessment
Cycle

Expected

Actual

Delta

ocs

ocs

ocs

Resulting
Base
Salary

Total CCS and
Broadband IV
Bonuses

Dr. Kaplan
[

]

[

]

[

]

[

]

[]

10/01/129/30/13

[

]

[

]

[ ]

[

]

[]

10/01113-

[

]

[

l

[ ]

[

]

[]

[

]

[

]

[ ]

[

]

[]

10/01/11-

9130112

9130114
10/01/14-

9130115
Dr. Nachman
10/01/11-

[

]

[

]

[]

[

]

[

l

[

]

[

]

[]

[

]

[

]

[

]

[

l

[]

[

]

[ ]

[

]

[

]

[]

[

]

[

]

[

]

[

]

[

]

9130112
10/01112-

9130113
10/01113-

9130114
10/011149/30/15

Dr. Bonneau
10/01/119/30/12

[

10/01112-

[ ]

]

[

l

[]

[ ]

[

]

[

9130113
NIA

10/01113-

9130114

10

]

NIA

I 0/01/149/30/15

PX 9, 10, 20, 21, 36, 37, 39, 44, 45, 139; DX 100.
Sixteen witnesses testified during trial. We also received the transcript
of the de bene esse deposition of Colonel Robert Kraus, a former first-level
supervisor of Dr. Kaplan. We will list the witnesses in order of their
appearance along with a brief biographical description. As relevant, we will
discuss the particulars of their testimony in more detail below.
On the first day of trial, four witnesses testified. The first was Dr.
Kaplan. Second was Dr. Frederica Darema, former director of the
Mathematics, Information, and Life Sciences Directorate and current director
of AFOSR. Third was Dr. Thomas Russell, former AFOSR director and the
Pay Pool Manager ("PPM") for the assessment cycles that set Dr. Kaplan's
2011, 2012, and 2013 pay. Dr. Patrick CatTick was the fourth witness to testify
and was the PPM that set Dr. Kaplan's pay for 2014. Dr. Kaplan served as Dr.
Carrick's deputy when he was the director of the Physics & Electronics
Directorate.
On the second day of trial, Dr. Carrick concluded his testimony and the
following six witnesses testified. Ms. Lisa Aiken, a paralegal for the
Department of Justice and the fifth witness to testify, helped prepare
defendant's exhibit 100-a gathering of the salaries and overall contribution
scores of plaintiffs and her comparators, along with a total of their bonuses,
if any.
Colonel Andrew Szmerekovsky, the sixth witness to testify, was the
PPM responsible for the assessment cycle that set Dr. Kaplan's pay for 2015.
Ms. Michelle Williams testified seventh. She was the chief of the personnel
demonstration project office in the headquarters of the AFRL at all times
relevant to this case. Eighth to testify was Ms. Terry Brailsford, who was at
all relevant times the chief of operations management and responsible for
human resources. Ms. Mary Jackson was the ninth witness. She was the
contribution-based compensation system coordinator for the AFOSR Lab
Demo System. Dr. Milton Blackwood, one of plaintiffs alleged comparators
for her deputy director position, testified tenth.

11

On the third and final day of trial, the remaining six witnesses testified:
Dr. Hugh DeLong, one of plaintiffs alleged comparators for her deputy
director position (he appeared by videoconference ); Dr. Robert Bonneau, one
of plaintiffs alleged comparators for her program officer position; Dr. Arje
Nachman, one of plaintiffs alleged comparators for her program officer
position; Mr. Raheem Lawal, not an alleged comparator but a program
manager beginning in 2005; Dr. Thomas Christian, Jr., the PPM responsible
for setting Dr. Kaplan's pay for 2016 and until December 2016, the director
of AFOSR; and Lieutenant Colonel Jamie Morrison, the branch chief of the
Engineering and Information Sciences branch and Dr. Kaplan's first-level
supervisor beginning in April of2015. The de bene esse deposition of Colonel
Robert Kraus, Dr. Kaplan's first-level supervisor prior to Lt. Col. Morrison,
was admitted as Court Exhibit 1.
DISCUSSION
The Equal Pay Act provides in relevant part that:
No employer having employees subject to any provision of this
section shall discriminate, within any establishment in which
such employees are employed, between employees on the basis
of sex by paying wages to employees in such establishment at a
rate less than the rate at which he pays wages to employees of
the opposite sex in such establishment for equal work on jobs
the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions, except where such payment is made pursuant to (i)
a seniority system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production; or (iv)
a differential based on any other factor other than sex ....
29 U.S.C. § 206(d)(l). Dr. Kaplan believes that, during her service as a
program manager, deputy director, and program officer with AFOSR, the
government violated this provision and did so willfully. Even though the
limitations period, assuming a willful violation, goes back no further than
January 2011, she can challenge the operation of the Lab Demo project as far
back as October of2009, when the assessment cycle fixing her pay for 2011
began. To successfully prove a violation of the Equal Pay Act, she has the
burden to demonstrate that she was paid less than her respective male
comparators for a job that required substantially equal skill, responsibility, and
12

effort. Cooke v. United States, 85 Fed. Cl. 325, 341 (2008).
If plaintiff is able to establish her primafacie case, the burden shifts to
defendant to demonstrate by a preponderance of the evidence that the
difference in pay is due either to "(i) a seniority system; (ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor than sex." 29 U.S.C. § 206(d)(l ).
The burden on the employer is "a heavy one," and it must demonstrate that the
factor causing the difference in wage is actually the gender-neutral factor
identified. Cooke, 85 Fed. Cl. at 347.

The government attributes the pay disparity between Dr. Kaplan and her
male comparators to the proper functioning of the Lab Demo system, which
was in place at all times relevant to this case, and which compensates
employees according to the quality of their performance by measuring an
employee's contribution to the AFOSR mission through an organized
procedure that uses predetermined criteria. It contends that plaintiff was fairly
scored for her contribution under that system, and as a result of her lower
contribution to the mission of AFOSR, she continued to be paid less than her
alleged comparators.
To establish the merit system defense, defendant must demonstrate that
the Lab Demo "was an organized and structured procedure by which
employees were evaluated systematically and in accordance with
predetermined criteria. Under such a merit system, an employer may reward
workers for outstanding experience, training, and ability, so long as the
resulting salary differential is not based upon sex." Raymondv. United States,
31 Fed. Cl. 514, 518 (1994) (internal citations omitted). Further, a meritbased system does not have to be devoid of subjectivity. EEOC v. Aetna Ins.
Co., 616 F.2d 719, 726 (4th Cir. 1980) ("An element of subjectivity is
essentially inevitable in employment decisions; provided that there are
demonstrable reasons for the decision, unrelated to sex, subjectivity is
permissible."). Finally, "[i]fthe merit system is not in writing, the employer
must also show that the employees were aware of it." 7 Cooke, 85 Fed. Cl. at
347 (citing Aetna, 616 F.2d at 725).

7

We note that the Lab Demo is in writing and that we are not persuaded by
plaintiffs arguments that slight deviations or discretionary decisions by the
supervisors amounted to a change to some unwritten policy.
13

There is no question that plaintiff was paid less than the male
employees she selected as comparators. Nevertheless, it is unnecessary for us
to consider whether plaintiff has established that these men performed work
that required substantially equal skill, responsibility, or effort because the
government has clearly established the second-listed defense above-the
application of a merit system. 8 We conclude for reasons set out below that the
Lab Demo is a legitimate and comprehensive merit system that adequately
explains the difference in pay between Dr. Kaplan and her alleged male
comparators. The Lab Demo system is as free from subjectivity as one could
reasonably expect a merit system to be. Also, we find that, in assessing both
Dr. Kaplan and her alleged male comparators, her supervisors deviated from
the Lab Demo procedures only to a minor and inconsequential degree, causing
no prejudice to Dr. Kaplan. 9
As plaintiff points out, and as can be seen from the chart set out above,
plaintiffs beginning salary in 2011, when she began her term as a Deputy
Director, was approximately $9,000-$12,000 less than the other two deputy
directors were making that year, not considering the differences in bonuses.
Plaintiff argues that this illustrates her claim of disparate treatment.
In response, the government points out that her salary commencing that
year was the result of the assessment cycle for October 2009-September 2010,
during which time she was not yet a deputy director but was a program
manager. The Lab Demo contemplates that in such a situation, her default
8

Not that we have any misgivings about the quality of the government's
evidence on this point. There was ample evidence that plaintiff was not
performing the work that required substantially the same skill, effort and
responsibility. For example, her work as deputy director was more often
administrative in nature, whereas Dr. DeLong served as acting director of his
directorate at this time, while also managing a portfolio. Dr. Bonneau, one of
her comparators for the program officer position, in addition to his other
duties, served as "cochair of the large-scale networking group for the Office
of Science and Technology Policy for the White House." Tr. 737.
9

For example, Dr. Kaplan testified that she only received mid-cycle feedback
for two assessment cycles relevant to this litigation. Tr. 78-79. Because this
mid-cycle review was not a part of the end-of-cycle assessment process that
determined her pay, this deviation from the Lab Demo carries little weight in
plaintiffs attempt to rebut the government's affirmative defense.
14

salary would be carried along from the prior position, as adjusted by the
assessment results. Although supervisors had the discretion, when someone
moved positions in that fashion, to raise the base pay in anticipation of a
greater expected contribution, that did not occur in her case. Despite her
change in title, her salary as Deputy Director thus was determined by her prior
performance in the program manager position.
This happened again in February 2013 when her position changed from
deputy director to program officer. Her pay as a program officer commencing
in that year was fixed by her evaluation for the preceding assessment cycle
when she was working as a deputy director. There is no reason to think that
plaintiff was treated any differently in this respect than anyone else in the
agency who moved between positions. All of this was consistent with the
manual. 10
The mere fact that she held the same title as her higher paid
comparators is not an indictment of the system. The relevant inquiry is
whether the agency's application of the assessment process was legitimate. If
it was, then the disparity in salary from year to year would continue. Given the
nature of the Lab Demo, it is inevitable that employees with the same job title
will receive different salaries based on their respective contributions and those
differences are cumulative.
We also note that the Lab Demo is more agile than the GS system when
it comes to recognizing an employee's impactful work with higher
compensation. For example, Dr. Bonneau, an alleged compartator for Dr.
Kaplan's program officer position, joined the AFOSR as a DR-III level
program manager in 2007. Tr. 730. While serving as a program manager, Dr.
Bonneau quickly raised his OCS score to the [ ] maximum in the assessment
cycle beginning October 1, 2010. PX 43. This represented a nearly [ ] OCS

10

The manual gives management the authority to make such a change in pay
when an employee moves within the system but does not make it mandatory.
PX 50 at KAPL000272. The Manual provides that "[w]hen setting basic pay
... managers must consider an employee's expected level of contribution
based upon academic qualifications, competencies, experience ... [and their]
current OCS" among other factors. Id. We decline the opportunity to second
guess her supervisors as plaintiff has failed to show how their decision was
irrational or otherwise inconsistent with the Manual.
15

increase from his expected OCS of [ ] from the previous cycle. PX 42. In
other words, in two years, Dr. Bonneau was able to raise his Actual OCS by
a significantly greater amount than Dr. Kaplan did through all assessment
cycles relevant to this litigation. 11
The actual fairness and consistency of this somewhat mechanical
grading scheme is thus dependent in the first instance on the quality of the
first-line supervisors' scoring and then on whether there was meaningful
second-level review. Here we have no reason to question either the
inputs-admittedly somewhat subjective-or the higher-level reviews.
Through testimony elicited at trial and other evidence in the record, the
government was able to demonstrate that each of Dr. Kaplan's first-level
supervisors, namely, Dr. Carrick, Colonel Kraus, and Lieutenant Colonel
Morrison, used the required rubric and did not consider Dr. Kaplan's gender
while preparing their assessments. Court Ex. 1 at 11-12, 24-26; Tr. 3 81, 3 85,
890, 903. For example, Lieutenant Colonel Morrison testified about his use
of the Lab Demo rubrics during his assessments as follows: "what I'm doing
is I've got that rubric in front of me and I'm trying to match what language
[from the rubric] best describes the activity that I've seen." Tr. 890.
These first-line evaluations, which arguably could be the most
problematic in terms of subjectivity, were then reviewed by second-line
supervisors, the PPMs. Dr. Russell, Dr. Carrick, Colonel Szmerekovsky, and
Dr. Christian testified that both Dr. Kaplan's andher comparators' OCS scores
accurately reflected their contribution, and were in line with those of other
employees. Tr. 258-59, 409-12, 492, 830-31.
In addition, AFOSR administrators, Ms. Terry Brailsford and Ms. Mary
Jackson, explained that they observed the meetings of managers in order to
ensure a level of uniform application of the procedures. Ms. Brailsford, the
Chief of Operations Management who attended all MoMs since at least 2010,
testified that the standardized rubrics were used in the MoMs to assess each

11

While the system allows for more rapid progression, it also contemplates
situations where an employee is unable to further increase her contribution.
The Manual provides that "[i]t is reasonable to expect an employee's ability
to increase contribution to eventually plateau .... In [this] case[], artificial
bumps that increase scores (such as from a 2.2 to 2.3) should be avoided if
contribution remains the same." Id. at KAPL000283.
16

employee's contributions. Tr. 627. Ms. Jackson, the CCS coordinator who
also attended all MoMs at all times relevant to this litigation, testified, as did
Ms. Brailsford, that gender did not play a role in the Lab Demo process. Tr.
627, 655. Plaintiff cannot point to any credible evidence to rebut this
testimony. In effect, her challenge amounts to no more than an effort to have
the court substitute its assessment of her performance for that of her
supervisors.
Dr. Kaplan, in her post-trial reply brief, identifies a number ofinstances
in which she believes that the government's reliance on the PPMs' testimony
is misplaced due to alleged inconsistences in their statements at trial. We are
not persuaded, however. As an example, plaintiff argues that "Col
Szmerekovsky did not address the 'red flags' with Col Kraus using copied Lab
Demo instruction text as Dr. Kaplan's contributions." Pl.'s Post-Trial Reply
14. 12 However, it was only Dr. Kaplan who identified the copying itself to be
a "red flag," not Colonel Szmerekovsky. The only "red flag" that Colonel
Szmerekovsky clearly identified in his testimony was that Colonel Kraus was
signaling that Dr. Kaplan's contribution level in certain areas was below the
level at which Dr. Kaplan was expected to contribute as a DR-IV employee.
Tr. 469-70. Dr. Kaplan makes a number of arguments attempting to show that
the Lab Demo procedures were not followed. In all of them that are actually
relevant to this case, plaintiff is either mistaken in fact or plaintiff's comment
highlights an inconsequential deviation that we find was not prejudicial to her
participation in the Lab Demo process. We hold that plaintiff has not shown
that the agency failed to adequately follow the procedures of the Lab Demo.
Plaintiff also advances several arguments that we find amount to
nothing more than her disagreements with how her contributions were valued

12

This is a reference to Colonel Kraus's replacement of some of the language
from Dr. Kaplan's self-assessment with that of the rubric's description of a
lower broadband level during the end-of-cycle assessment that set her pay for
2015. Dr. Kaplan also argues that, since Colonel Kraus copied the language,
his assessment was not based on her actual contribution. We are satisfied that
this was Colonel Kraus' s way of describing her actual contribution and note
that her AFRL Form 280 from that year also mentions a number of specific
contributions that she made. See PX 37. Moreover, as defendant points out,
Ms. Michelle Williams testified that she did not find Colonel Kraus' s taking
excerpts from the rubric in the manner that he did to be inappropriate. Tr. 588.
17

through the Lab Demo process. She fails to demonstrate, however, that there
was an impermissible level of subjectivity. For example, in her post-trial brief,
Dr. Kaplan takes issue with how Dr. Christian only pointed out "one thing"
when he "was asked to compare Dr. Kaplan's impressive communications
contributions which only received a [ ] with Dr. Nachman's less-thanimpressive [communication] contributions which received a [ ] ." Pl.' s PostTrial Br. 3 8. The one contribution that Dr. Kaplan is referencing related to Dr.
Nachman's visit to the Intelligence Advanced Research Projects Activity
("IARP A"). Dr. Christian testified that this communication was particularly
important because IARP A exists to support the intelligence community, "so
it's a very important organization doing work that highly benefits the nation."
Tr. 841. Dr. Christian went on to explain that "[t]here is tremendous money
that IARPA puts into research, and this allows the Air Force to let them know
what we're doing and inform them." Id. Dr. Kaplan cites this to illustrate the
fact that one contribution can carry a lot of weight while another may have
little influence on a factor score, thus showing the "complete subjectivity" of
the system. Pl.'s Post-Trial Br. 38. We disagree with her characterization.
Indeed, it is difficult to imagine any merit-based system passing muster under
Dr. Kaplan's view.
With respect to her position as a program officer, we note that the
assessments performed by Dr. Kaplan's supervisors were corroborated, in part,
by unfavorable reviews by the Air Force Scientific Advisory Board ("SAB")
in front of which Dr. Kaplan presented in March 2016. 13 Dr. Christian
described the SAB as follows: "The SAB is a very ... independent, objective,
and I' 11 use the term 'eminent experts.' They're from universities. They're
from government laboratories .... And they review every directorate within
the research laboratory, of which AFOSR is one." Tr. 846-47. When Dr.
Kaplan assumed the program officer position in February 2013, she inherited
the "Software and Systems" portfolio from Dr. Bonneau. Tr. 740. Relevant
here, the SAB reviewed the Software and Systems portfolio when it was under
Dr. Bonneau in 2012 and under Dr. Kaplan in 2016. In 2012, Dr. Bonneau
received the highest possible rating from the SAB for the Systems and

13

We note that a presentation in March of2016 would be relevant for setting
Dr. Kaplan's pay for2017, and that Dr. Kaplan was removed from her position
in November of 2016. We find the SAB 's assessment to be relevant in that it
demonstrates the negative impact that Dr. Kaplan had over time on an
inherited program.
18

Software program. PX 44. Under Dr. Kaplan in 2016, the SAB found that it
"was the only one to be highly deficient," and "strongly recommended that no
money be put into it until it was restructured." Tr. 848. Two months later, Dr.
Kaplan was placed on a contribution improvement plan based on a finding that
her contributions were not commensurate with her pay. PX 213.
While we have discussed only a few examples of the evidence plaintiff
eites to demonstrate bias, we believe that they are illustrative and are satisfied
that the difference in the contribution scores are not the result of an improper
amount of subjectivity. The Lab Demo system is structured to limit
subjectivity, while recognizing that the assessments of first-line supervisors are
to some extent subjective. The First-Level MoM, PPM MoM, and the
employees' ability to later file grievances all work towards introducing
objective points of comparison. As Dr. Christian testified, the "seeond set of
eyes" provided by the other supervisors in the First-Level MoM minimize
subjectivity. Tr. 835-36.
We are also satisfied that the deseription by Colonel Szmerekovsky, the
PPM that set Dr. Kaplan's pay for 2015, is accurate. He viewed it as his job
in the PPM MoM to "ensure the integrity of the system," Tr. 468, and to make
certain that there was a
similar or consistent standard when [the supervisors are] looking
at the rubric across the board .... And if it's not consistent, [if]
one person appears to be too hard on their people and one
person appears to be too easy, we try to normalize it ... through
discussion and say, hey, why are you rating this because ... this
doesn't match the rubric or this isn't consistent with how we've
been providing ratings.
Tr. 519.
Finally, plaintiff also challenges what she considers to be inconsistency
in the award of bonuses. For example, Dr. Kaplan argues that Dr. Russell, the
PPM forthe assessment cycles that set Dr. Kaplan's 2011, 2012, and 2013 pay,
could not explain how Dr. Nachman and Dr. Bonneau, who both received an
Overall Contribution Score of [
], were awarded different bonuses.
However, as the government points out, Dr. Russell was able in a brief
examination of Dr. Bonneau's AFRL Form 280 to identify at least one
illustration that Dr. Bonneau was working beyond his portfolio and
19

contributing at levels higher than Dr. Nachman, thus entitling him to a larger
bonus. Tr. 212. In any event, while there was some uncertainty regarding the
bonuses expressed during trial, we are satisfied that the two types of bonuses
were adequately described in the Manual, which was consistent with Ms.
Williams' testimony, among others. See e.g., PX 50 at KAPL000272-73,
000310; Tr. 579. We also note that Dr. Kaplan 's actual OCS never came close
to the 4.85 score that would make the broadband IV bonus relevant to her total
compensation. Also, she has failed to demonstrate any unsustainable
contribution for which she should have been awarded a CCS bonus.
Accordingly, we see no reason to question her supervisor's judgment in not
awarding her a bonus.
CONCLUSION
Dr. Kaplan was paid less than her alleged comparators, but even if those
men did work performed under similar working conditions that required
substantially equal skill, effort and responsibility, the government has satisfied
it burden of proving that those pay differences are entirely attributable to the
operation of its merit pay system. We have considered all of Dr. Kaplan's
other arguments and find them to be without merit. 14 Accordingly, plaintiffs
complaint is dismissed. The Clerk of Court is directed to enter judgment in
favor of the United States. No costs.

~R~ ~
Senior Judge

14

Plaintiff argues that she was denied a number of advancement opportunities
that she believes would have helped her bolster her contribution. We are
satisfied that her supervisor's actions in this regard were based on legitimate
management considerations and are not a reflection of gender bias. In her
post-trial brief, plaintiff also makes a general argument regarding other female
employees that were paid less than the male employees they replaced. At trial,
Dr. Kaplan made a relevance objection when defendant's counsel began a line
of questioning designed to elicit facts that could rebut this argument. We
sustained plaintiffs objection after she stated that she would not be pursuing
such an argument. Tr. 291.

20