NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHLEEN M. KAPLAN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-2496
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00067-EGB, Senior Judge Eric G.
Bruggink.
______________________
Decided: April 10, 2018
______________________
KATHLEEN M. KAPLAN, Arlington, VA, pro se.
DANIEL KENNETH GREENE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., REGINALD T. BLADES, JR.
______________________
Before PROST, Chief Judge, WALLACH, and TARANTO,
Circuit Judges.
2 KAPLAN v. UNITED STATES
PER CURIAM.
Dr. Kathleen Kaplan, a federal government employee,
brought this action in the United States Court of Federal
Claims, alleging that her pay violated the statutory bar
on sex discrimination stated in the Equal Pay Act, 29
U.S.C. § 206. The Court of Federal Claims found that the
government had proven its affirmative defense—that it
paid Dr. Kaplan in compliance with a proper merit-based
compensation system—and accordingly entered judgment
in the government’s favor. Kaplan v. United States,
133
Fed. Cl. 235 (2017). We affirm.
I
A
Dr. Kaplan held several positions at the Air Force Of-
fice of Scientific Research, which is a part of the Air Force
Research Laboratory that manages research investments
for the Air Force. She began working for the Office of
Scientific Research in 2005 as a program manager. She
became the deputy director of the Physics & Electronics
Directorate of the Office on January 10, 2011, and then
served as a program officer in the Information, Decision,
& Complex Networks division of the Office from February
2013 until her termination in November 2016.
During her time at the Office, Dr. Kaplan was paid
according to a compensation system called the Laboratory
Personnel Demonstration Project (Lab Demo). The Lab
Demo system separated employees into four groups (the
DR I–IV “broadband levels”) rather than the usual fifteen
federal-government General Schedule (GS) grades.
Within each level, it set salaries using a “contribution-
based compensation system,” which was designed to “go[]
beyond the traditional performance-based personnel
management system” and reward “contribution[s] to the
laboratory mission, rather than how well the employee
performed a job, as defined by a performance plan.” J.A.
KAPLAN v. UNITED STATES 3
84. The Lab Demo system also classified employees into
various career paths. Dr. Kaplan was in the science and
engineering (DR) career path.
Under the Lab Demo system, employees were evalu-
ated and scored each year based on four factors: problem
solving, communication, technology management, and
teamwork and leadership. The governing Air Force
Research Laboratory Manual sets forth a “rubric” that
elaborates on each of the four factors as applied to partic-
ular career paths and broadband levels. The scores for
each factor were averaged to determine an employee’s
Overall Contribution Score, which, along with a Standard
Pay Line, determined the employee’s possible pay in-
crease for the next year. The Standard Pay Line was a
linear graph correlating Overall Contribution Scores to
salaries for a given career path in a given year. The
Standard Pay Line helped identify whether an employee
was being paid correctly, too little, or too much based on
the employee’s Overall Contribution Score. Pay was
correct if within 0.3 points of the relevant Standard Pay
Line value.
The Office’s process for determining an employee’s
Overall Contribution Score involved several levels of
review and assessment. At the end of an evaluation
period, the employee first performed a self-assessment of
her contributions. The employee’s first-level supervisor
reviewed the self-assessment and prepared a preliminary
assessment. The supervisor took the preliminary assess-
ment to a First-Level Meeting of Managers, where first-
level supervisors of similar employees met with their
respective second-level supervisors to discuss the prelimi-
nary assessments and adjust each employee’s scores for
the four prescribed factors. Next, a Pay Pool Manager
responsible for the employee took part in a second Meet-
ing of Managers, during which various Pay Pool Manag-
ers met and compared scores for a large number of
employees to ensure consistent application. If the scoring
4 KAPLAN v. UNITED STATES
was not consistent, the Pay Pool Manager could direct a
subordinate manager to take a second look at the employ-
ee’s contributions. Once the Pay Pool Manager had
arrived at a final set of scores, the first-level supervisor
informed the employee, furnishing a Form 280 that
explained the decisions made in the Meetings of Manag-
ers and the reasons for the scores. The employee could
file a grievance, but if there were no successful grievance,
the employee’s Overall Contribution Score was set and
compared to the Standard Pay Line for the employee’s
career path to determine whether the employee was being
correctly paid.
The Lab Demo system also included several forms of
bonuses to reward exceptional performance or compensate
for underpayment. One was a “broadband IV” bonus to
compensate employees whose contributions put their
projected salary above the usual GS-15/step 10 maximum
salary. Another was a “CCS bonus” to reward important
yet unsustainable contributions.
B
In January, 2014, Dr. Kaplan filed a complaint with
the Court of Federal Claims under the Equal Pay Act, 29
U.S.C. § 206, alleging that she had been underpaid rela-
tive to her male colleagues under the specific standards
for comparison set out in that Act. She submitted salary
information for several men at each of the three positions
she held within the Office of Scientific Research.
Kaplan,
133 Fed. Cl. at 240. In each instance, the male compara-
tors earned higher salaries than Dr. Kaplan.
Id.
In December 2016, the court held a trial, at which six-
teen witnesses testified.
Id. at 242. In its eventual find-
ings, the court credited Dr. Kaplan’s evidence that she
was paid less than her comparable male colleagues at
each of her three positions, but the court declined to
decide whether or not she performed work requiring equal
skill, effort, and responsibility (considerations specified in
KAPLAN v. UNITED STATES 5
the Equal Pay Act).
Id. at 244. Instead, based on the
evidence presented by the government, the court deter-
mined that the Lab Demo system was a “legitimate and
comprehensive merit system that adequately explains the
difference in pay between Dr. Kaplan and her alleged
male comparators.”
Id. As a basis for that determination,
the court noted that, while the Lab Demo system allowed
the first-level supervisor’s assessments to be “to some
extent subjective,” the multi-tiered review process
“work[ed] towards introducing objective points of compar-
ison.”
Id. at 247. The court also considered testimony
from many of Dr. Kaplan’s supervisors that the identified
differences in pay were the result of her contributions, as
assessed under the official rubric, and that her sex was
not a factor.
Id. at 245. In addition, the court credited
the government’s evidence of Dr. Kaplan’s unfavorable
reviews by the Air Force Scientific Advisory Board—an
“independent, objective” body.
Id. at 247.
As a result, the court concluded that the Lab Demo
system was as “free from subjectivity as one could reason-
ably expect,”
id. at 244, and that “the government was
able to demonstrate” that all of Dr. Kaplan’s first-level
supervisors “used the required rubric and did not consider
Dr. Kaplan’s gender while preparing their assessments,”
id. at 245. Because the government had established an
affirmative defense to any potential case of sex-based
wage discrimination Dr. Kaplan might prove, the court
ruled for the government.
Id. at 248.
The court issued its final judgment on June 30, 2017,
and Dr. Kaplan filed her notice of appeal on August 24,
2017, within the 60-day time limit. 28 U.S.C. §§ 2522,
2107(b)(1). We have jurisdiction to hear this appeal
pursuant to 28 U.S.C. § 1295(a)(3).
II
We review the trial court’s legal conclusions de novo
and its findings of fact for clear error. Rasmuson v. U.S.,
6 KAPLAN v. UNITED STATES
807 F.3d 1343, 1345 (Fed. Cir. 2015) (citation omitted). A
finding of fact is clearly erroneous “when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that
a mistake has been committed.” U.S. v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1984).
The Equal Pay Act, 29 U.S.C. § 206, states:
No employer having employees subject to any pro-
visions 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 establish-
ment at a rate less than the rate at which he pays
wages to employees of the opposite sex in such es-
tablishment for equal work on jobs the perfor-
mance 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 sys-
tem; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of pro-
duction; or (iv) a differential based on any other
factor other than sex. . .
29 U.S.C. § 206(d)(1). The basic two-part proof scheme
under that statute is not in dispute here. As relevant
here, a plaintiff may establish a prima facie case of a
violation by showing that she was paid “at a rate less
than the rate” of her male counterparts for “work . . .
requir[ing] equal skill, effort, and responsibility”; and if
that is shown, the burden shifts to the government to
prove that the payment system in question falls into one
of the four enumerated exceptions. See, e.g., Yant v.
United States,
588 F.3d 1369, 1372 (Fed. Cir. 2009). Proof
of payment pursuant to a merit-based system does not
require proof that the system is entirely free from subjec-
tivity. See, e.g., EEOC v. Aetna Ins. Co.,
616 F.2d 719,
KAPLAN v. UNITED STATES 7
726 (4th Cir. 1980) (“An element of subjectivity is essen-
tially inevitable in employment decisions; provided that
there are demonstrable reasons for the decision, unrelated
to sex, subjectivity is permissible.”); Harrison-Pepper v.
Miami Univ., 103 F. App’x 596, 601 (6th Cir. 2004) (“use
of subjective criteria does not preclude [a] merit-based
system from constituting an affirmative defense”).
A
Dr. Kaplan makes several arguments that are essen-
tially arguments about the initial stage, concerning prima
facie proof of a violation. But those arguments are not a
basis for disturbing the judgment on appeal here. The
Court of Federal Claims assumed proof of a prima facie
violation and determined that the government established
an affirmative defense. Dr. Kaplan’s arguments about the
prima facie case do not undermine the determination of
an affirmative defense, which suffices to reject the Equal
Pay Act claim.
For example, Dr. Kaplan argues that she was paid
less than Dr. Robert Bonneau after she took over for him
as the program officer in charge of the Systems & Soft-
ware technology portfolio. Dr. Kaplan cites an Equal
Employment Opportunity Commission regulation stating
that when an “employee of one sex is hired or assigned to
a particular job to replace an employee of the opposite sex
but receives a lower rate of pay than the person replaced,
a prima facie violation of the EPA exists.” 29 CFR
§ 1620.13(b)(2). This point on its face bears on the prima
facie case, and it does nothing to undermine the govern-
ment’s affirmative defense that the Lab Demo system is a
merit system. In any event, we note that the Court of
Federal Claims found that “[t]here is no reason to think
that plaintiff was treated any differently [] than anyone
else in the agency who moved between positions.”
Kaplan, 133 Fed. Cl. at 245.
8 KAPLAN v. UNITED STATES
Similarly, Dr. Kaplan suggests that the court violated
her due process rights by failing to individually address
her arguments that she was paid less than her male
counterpart at each of her positions within the Office of
Scientific Research. On its face that contention seems to
bear only on the existence of a prima facie case, which the
Court of Federal Claims accepted. Dr. Kaplan has not
explained how it bears on whether the trial court erred in
finding that a merit system accounted for the differences
Dr. Kaplan identified. We have been shown no basis for
requiring a more job-specific inquiry than the trial court
made in finding that Dr. Kaplan was consistently paid
pursuant to the Lab Demo system during her entire
tenure at the Office and the system was a “merit system.”
B
Dr. Kaplan also argues that the trial court erred in
concluding that the Lab Demo system is a merit system.
Her broadest argument is that the Equal Pay Act requires
a present-tense focus of the comparison of the specified
considerations (work, required skills, etc.) and that the
Lab Demo system is counter to that focus because it sets
compensation based on a look-back at contributions. We
understand this as an argument that the Lab Demo
system cannot be “merit based” for that reason; otherwise,
the argument would bear only on the prima facie case,
which was not the basis for the judgment in the trial
court. But we have been presented no justification for a
rule of law that would preclude a “merit” system from
including sex-neutral assessments of facts such as recent
performance and contribution to the employer’s mission,
at least where, as here, the updating process for pay
evaluation is frequent.
As for the specifics of the Lab Demo system at issue
here, Dr. Kaplan supplies nothing that would justify
reversal of the trial court’s crediting of the testimony of
her supervisors and other evidence that this was a merit
KAPLAN v. UNITED STATES 9
system under the Equal Pay Act. She argues that the Lab
Demo system is a “pyramid scheme” using “completely
subjective scoring” and that the four-factor contribution
scores “do not make any sense,” and she contends that the
term “contribution” is not defined in the Air Force Re-
search Laboratory Manual and that “performance” should
have been used as the measure instead. We see no error,
however, in the trial court’s determination that the Lab
Demo system, with its choice of “contribution” over “per-
formance” and its detailed rubric for evaluating each of
the four contribution factors, broken down by career path
and broadband level, qualifies as a merit system with a
degree of objectivity suitable to the kind of personnel
evaluation at issue here.
Kaplan, 133 Fed. Cl. at 237.
Regarding the application of the Lab Demo system in
operation, Dr. Kaplan has not shown that the Office failed
to abide by or apply the standards of the system. She
makes one focused argument: that she was denied ad-
vancement opportunities offered to her male counter-
parts—specifically, opportunities to manage multiple
technical research portfolios, which in turn allowed her
male counterparts to achieve higher contribution scores
under the Lab Demo system. But the trial court consid-
ered the evidence and rejected the contention.
Id. at 248
n.14. The evidence supports the rejection. It showed that
Dr. Kaplan had asked to manage three technical portfoli-
os during her time as a deputy director and that there
were sex-neutral explanations for denial of those requests:
in two cases, she lacked the technical qualifications
necessary to manage the portfolio; and in the third case
the requested portfolio was already being managed by an
employee in a different directorate.
We have considered the rest of Dr. Kaplan’s argu-
ments and find them similarly unpersuasive.
10 KAPLAN v. UNITED STATES
III
For the foregoing reasons we affirm the judgment of
the Court of Federal Claims.
No costs.
AFFIRMED
