Kaplan v. United States

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. §

v. 206(d)(l); Merit system.

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 & Non-

Equilibrium 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 GS-

15/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 first-

level 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 Expected Actual Delta Resulting Total CCS and

Cycle ocs ocs ocs Base Broadband IV

Salary Bonuses

Dr. Kaplan

10/01109- [ ] [ ] [ ] [ ] []

9130110

10/01/10- [ l [ l [ l [ l [l

9/30/11

Dr. Schlossberg

10/01109- [ l [ l [ l [ l [ ]

9130110

10/01/10- [ l [ l [ ] [ l [l

9130111

Dr. Wu

10/01109- [ l [ l [ l [ ] [ ]

9130110

10/01/10- NIA

9/30/11

PX 22, 29, 31, 32, 175; DX 100.

Deputy Director

Assessment Expected Actual Delta Resulting Total CCS and

Cycle ocs ocs ocs Base Broadband IV

Salary Bonuses

Dr. Kaplan

I 0/01/09- [ l [ l [ l [ l [ ]

9130110

8

10/01/10- [ ] [ ] [ ] [ ] []

9/30/11

10/01/11- [] [ ] [ l [ ] []

9/30/12

10/01/12- [l [] [] [ ] []

9/30/13

Dr. Blackwood

10/01/09- [ l [ ] [ ] [ ] [ ]

9/30/10

10/01110- [ ] [ ] [ ] [ ] [ ]

9/30/11

10/01111- [ ] [ ] [ ] [ ] []

9/30/12

10/01/12- [ ] [ ] [] [ ] []

9/30/13

Dr. DeLong

10/01/09- [ ] [ ] [] [ ] [ ]

9/30/10

10/01/10- [ ] [ ] [] [ ] [ ]

9/30/11

10/01/11- [ ] [ ] [] [ ] [ ]

9/30/12

10/01/12- [ ] [ ] [ ] [ ] [ ]

9/30/13

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

9

Program Officer

Assessment Expected Actual Delta Resulting Total CCS and

Cycle ocs ocs ocs Base Broadband IV

Salary Bonuses

Dr. Kaplan

10/01/11- [ ] [ ] [ ] [ ] []

9130112

10/01/12- [ ] [ ] [ ] [ ] []

9/30/13

10/01113- [ ] [ l [ ] [ ] []

9130114

10/01/14- [ ] [ ] [ ] [ ] []

9130115

Dr. Nachman

10/01/11- [ ] [ ] [] [ ] [ l

9130112

10/01112- [ ] [ ] [] [ ] [ ]

9130113

10/01113- [ ] [ l [] [ ] [ ]

9130114

10/01114- [ ] [ ] [] [ ] [ ]

9/30/15

Dr. Bonneau

10/01/11- [ ] [ l [] [ ] [ ]

9/30/12

10/01112- [ ] [ ] [ ] [ ] [ ]

9130113

10/01113- NIA

9130114

10

I 0/01/14- NIA

9/30/15

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 merit-

based 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-than-

impressive [communication] contributions which received a [ ] ." Pl.' s Post-

Trial 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