JSn tbe Wniteb ~tates Qeourt of jf eberal Qelailns 

No. 14-67C 

(Filed: June 30, 2017) 

(Re-filed: August 3, 2017) 1 

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

KATHLEEN KAPLAN, 

Plaintiff, 

FILED 

AUG . 3 2017 

OSM 

U.S. COURT OF 

FEDERAL CLAIMS 

v. 

Equal Pay Act; 29 U.S.C. § 

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 & 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 
Id. 

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. 

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 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-

9/30/15 

NIA 

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 3 7. 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 IARP A 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. 

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