Toalson Enterprises, Inc., No. SDBA-139 (May 9, 2000)
Docket No. SDBA-99-12-09-34

                              
                  UNITED STATES OF AMERICA
                SMALL BUSINESS ADMINISTRATION
               OFFICE OF HEARINGS AND APPEALS
                      WASHINGTON, D.C.
                              
                              
____________________________
                            )
IN THE MATTER OF:           )
                            )      Docket No. SDBA-99-12-09-34
Toalson Enterprises, Inc.   )
                            )      Decided:  May 9, 2000
     Petitioner             )
____________________________)

                         APPEARANCES

                S. Jeanne Toalson, President
                For Toalson Enterprises, Inc.
                              
                  Veronica L. Miranda, Esq.
            For the Small Business Administration
                              

                            DIGEST

The  SDB  applicant's own statements, such as those made  in
the  narrative,  may  be  the  only  available  evidence  of
particular incidents of discrimination.  In those instances,
the  lack  of  corroborative evidence does  not  necessarily
render  a claim legally insufficient.  However, where  other
evidence apparently is available to support a claim, but the
applicant  fails,  without  explanation,  to  present   that
evidence, the SBA may consider the lack of corroboration  in
weighing  the  evidentiary  value  of  the  SDB  applicant's
statements.
     
SBA may discount or disbelieve an SDB applicant's statements
that  are inconsistent with other, credible evidence in  the
record.

SBA  need not credit an SDB applicant's statements that  are
insufficiently  detailed to be convincing and  are  entirely
speculative.
     
An  SDB  applicant need not address each of the three  areas
(education, employment and business history) listed  in  the
regulation to establish social disadvantage.

An EEOC Conciliation Agreement may be used to corroborate an
SDB applicant's specific claims of discrimination.

SBA  may  discount  an SDB applicant's statements  that  are
inherently improbable.

                       INITIAL DECISION
                              
BLAZSIK, Administrative Judge:

                         Jurisdiction
                              
      This  appeal  petition  is  decided  under  the  Small
Business Act of 1958, 15 U.S.C. Sections 631 et seq., and 13
C.F.R. Parts 124 and 134 (1999).

                            Issues

     Whether  SBA may consider the lack of corroboration  in
weighing   the  evidentiary  value  of  an  SDB  applicant's
statements.
     
     Whether   SBA  may  discount  or  disbelieve   an   SDB
applicant's  statements  that are inconsistent  with  other,
credible, evidence in the record.

     Whether  SBA must credit an SDB applicant's  statements
that  are insufficiently detailed to be convincing  and  are
entirely speculative.
     
     Whether an SDB applicant must address each of the three
areas (education, employment and business history) listed in
the regulation to establish social disadvantage.

     Whether  an EEOC Conciliation Agreement may be used  to
corroborate   an   SDB   applicant's  specific   claims   of
discrimination.

     Whether  SBA may discount an SDB applicant's statements
that are inherently improbable.
     
                          Background

     On   August   16,   1999,  Toalson  Enterprises,   Inc.
(Petitioner)   applied   for  certification   as   a   Small
Disadvantaged   Business  (SDB)  to   the   Small   Business
Administration's  (SBA) Acting Associate  Administrator  for
Small  Disadvantaged Business Certification and  Eligibility
(AA/SDBCE).  13 C.F.R. Section 124.1008(a).  On November 23,
1999, the AA/SDBCE denied certification.

     Petitioner filed an Appeal Petition with this Office on
December  4, 1999.  On December 13, 1999, the Administrative
Judge issued a Notice and Deficiency Order.  On December 23,
1999, Petitioner filed an amended Appeal Petition.

     On  February 4, 2000, SBA timely filed its  Answer  and
the  Administrative  Record (AR or record).   SBA  requested
permission to withhold portions of one exhibit, claiming the
deliberative  process  and  the attorney-client  privileges.
Petitioner  did  not  object.  On  February  15,  2000,  the
Administrative Judge granted the request.
                              
                     The SDB Application
     
     Petitioner  was  incorporated  in  1994.   Its  primary
Standard  Industrial  Classification  code  is  4212  (Local
Trucking  Without  Storage),  with  a  corresponding   $18.5
million  average annual receipts size standard.   S.  Jeanne
Toalson  (Ms.  Toalson), the individual on  whom  Petitioner
based  its  claim of eligibility, is Petitioner's  President
and  53%  owner.   Ms.  Toalson  asserted  she  is  socially
disadvantaged because she is a woman.
     
     Included in the record is SBA's "Preponderance  of  the
Evidence"   instructions,  which  the  Business  Opportunity
Specialist  (BOS)  faxed to Petitioner.  AR  at  Exhibit  4.
These   instructions   cite  to  and  discuss   the   social
disadvantage  regulation  at 13 C.F.R.  Section  124.103(c).
Petitioner's  application presented evidence  of  individual
social  disadvantage relating to her employment and business
history.
                              
                        1.  Employment

      The  record  before  the  AA/SDBCE  contains  evidence
relating  to  Ms.  Toalson's employment at the  former  A.P.
Green  Refractories Company (Green).  This evidence includes
Ms.   Toalson's   own  statements,  such   as   her   social
disadvantage   narrative  (narrative).   It  also   includes
documents  from  Ms.  Toalson's  personnel  file  at  Green,
provided   to  her  by  Green's  successor,  Harbison-Walker
Refractories Company (Harbison); and documents  relating  to
an  EEOC  action.   This evidence covers five  subjects:  No
Maternity Leave, the EEOC action, Ms. Toalson's attempts  to
transfer  within  the  company,  her  resignation,  and  her
pension.
                              
                    a. No Maternity Leave
     
     Ms.  Toalson worked at Green in 1956, 1957-58, 1959-60,
and  1961-79.  AR at Exhibit 5A.  Her narrative stated  that
she  had to leave work for each child and lost her seniority
each  time,  although men did not lose their seniority  when
they  had  gallstones or heart attacks.  AR  at  Exhibit  5.
Harbison's August 27 and 31, 1999 letters confirm that Green
allowed  no  maternity leave then, and that Ms. Toalson  was
forced to resign in 1956, 1958, and 1960 due to pregnancies.
AR at Exhibit 5A.  These statements are further supported by
unemployment benefits claim documentation and Ms.  Toalson's
February 15, 1960 resignation letter.  Id.
                              
                       b.  EEOC Action
     
     The record contains portions of two EEOC determinations
on Green issued in 1973, an EEOC Conciliation Agreement that
Green  and  a  number of its employees  signed  in  1975;  a
September 10, 1999 letter written to Ms. Toalson by  one  of
the  charging parties; and Ms. Toalson's September 10,  1999
cover letter to the BOS.
     
     The charging party's letter to Ms. Toalson stated that,
at  the time of the EEOC action, Green's 122 women employees
held the 122 lowest-paid positions, and no women were on the
plant/union  payroll  or in supervisory  positions.   AR  at
Exhibit 5A.  Also, there was no posting of job vacancies, no
promotion or transfer opportunities, and no pay scale or pay
range for any job.  Id.
     
     One  EEOC  determination, based on charges relating  to
promotions, wages, job classifications, job assignments, and
general  terms and conditions of employment, concluded  that
Green  "has engaged, and is engaging, in unlawful employment
practices  by  discriminating against  females,  because  of
their  sex,  .  .  .  ."   AR  at  Exhibit  5A.   The  other
determination,  apparently  based  on  charges  relating  to
hiring  practices, concluded, "There is reasonable cause  to
believe  that [Green]'s sex-preference for certain jobs  and
classifications has a discriminatory impact on females as  a
class,  .  . . in that it excludes and has excluded  females
from  several  of  its  departments  and  from  certain  job
classifications because of their sex . . . ."  Id.
     
     The  Conciliation Agreement stated:  "The Parties agree
that  A.P.  Green denies that it has committed  any  act  in
violation of Title VII of the Civil Rights Act of  1964,  as
amended,  and  that  nothing contained in this  Conciliation
Agreement  shall be construed as an admission by A.P.  Green
of  any  violation of Title VII."  AR at  Exhibit  5A.   The
settlement  terms  included  monetary  payments  for   class
members,  posting of job vacancies, a program for evaluating
jobs   for  salary  administration,  wage  adjustments,   an
affirmative  action program, and a release and covenant  not
to  sue  Green.   Id.   The Conciliation Agreement  did  not
resolve the maternity leave issue.  Id.
     
     The  Conciliation  Agreement lists  Ms.  Toalson  as  a
member  of  the  class entitled to payment,  but  not  as  a
charging party.  AR at Exhibit 5A.  Ms. Toalson's letter  to
the  BOS  explained she did not sign the original  complaint
because  her  husband,  who  also  worked  for  Green,   was
threatened  with loss of his job.  Id.  She also noted  many
of the women involved in the class action are now dead.  Id.
Ms.  Toalson's narrative states she did not sign the release
or  take the settlement money because Green would not  admit
liability.  AR at Exhibit 5.

  c.  Attempts to Transfer Within the Company, Resignation,
                         and Pension
     
     In  response  to  Ms.  Toalson's  1977  request  for  a
transfer,  Green offered her a sales correspondent position,
at  the  midpoint salary of $885 per month (with  a  maximum
salary  of  $1020), plus overtime.  AR at Exhibit 5A  (Green
file  notes  dated March 1977).  She turned down  the  offer
because she already was earning $1030 per month, and did not
want  the  pay cut.  Id.  The October 1978 announcement  and
file  notes show that, when Ms. Toalson asked why Green  had
not  considered  her  for two newly-filled  project  manager
positions  in  manufacturing and  marketing,  the  personnel
officer   told   her  she  lacked  the  required   technical
experience,  and the individuals hired were  engineers  with
many years of experience.  AR at Exhibit 5A.
     
     Ms. Toalson resigned on July 27, 1979, while working as
an  export sales supervisor. AR at Exhibits 5A (letter dated
July  12, 1979), 5E (resume).  In a contemporaneous  letter,
she  explained  she resigned because, during  a  meeting  in
which her staff was given additional work, after stating she
would  need additional help if the workload kept increasing,
she  was  told,  "You are overstaffed  now  --  get  rid  of
somebody."   Therefore,  she resigned.   AR  at  Exhibit  5A
(letter).   Her final salary was $1397 per month, which  was
"79.4%  to  midpoint."  AR at Exhibit 5A  (August  31,  1999
letter from Harbison to Ms. Toalson).
     
     Green  retirees  receive pensions  based  on  years  of
service  and annual earnings.  AR at Exhibit 5A (August  27,
1999  letter  from Harbison to Ms. Toalson).  Ms.  Toalson's
narrative  asserted, because of Green's  discriminatory  pay
policy,  her  pension is 25% of the amount of her  husband's
pension.  AR at Exhibit 5.  The record shows the amounts  of
the  Toalsons'  pensions and the fact Ms. Toalson  began  to
receive  pension distributions from Green in  1998.   AR  at
Exhibit J (Internal Revenue Service Forms 1099-R).
                              
                    2.  Business History
     
     The   record   before   the  AA/SDBCE   contains   only
Ms. Toalson's own statements regarding her business history.
Her  resume  and  essay on Petitioner's history  stated  she
worked  for  herself as an Independent Truckline Agent  from
1981 to 1992, when the workload became so heavy her sons had
to return home to help her.  AR at Exhibits 5E, 5D.
     
     In  her narrative Ms. Toalson asserted there are  "many
men  who  simply  will  not deal with women,"  and  "several
cases" where shipping managers believe women cannot know  as
much  as  men do.  AR at Exhibit 5.  The "primary case"  was
Green's  shipping  manager,  who  would  not  give  her  any
business.  "He would tell me they had no freight and then go
to  meetings at the company and tell them he could not  ship
freight  because there were no trucks available.   He  would
wait  until other trucks became available and in all  cases,
these  trucklines were handled by men."  AR  at  Exhibit  5.
Further,  that manager's attitude "may have had to do  with"
the  EEOC  complaint, because it was "widely  assumed"  that
Ms.   Toalson  had  filed  it.   Petitioner  eventually  got
business from Green after that shipping manager left.  Id.
     
                 The AA/SDBCE's Determination

     On   November  23,  1999,  the  AA/SDBCE   issued   her
determination, denying Petitioner's SDB application  because
Petitioner  had not presented sufficient evidence  to  prove
Ms. Toalson's ability to compete in the marketplace had been
impaired due to discriminatory practices against her or  her
firm.   Further,  Petitioner  had  not  provided  sufficient
evidence to prove Ms. Toalson had been subjected to cultural
bias because of her gender.
     
     Specifically,   the   AA/SDBCE  found   Ms.   Toalson's
employment  history included a "single incident"  of  gender
discrimination  in Green's "hiring process,"  [1]  but  also
found  no  evidence that this discrimination was substantial
or  chronic.  AR at Exhibit 1.  The AA/SDBCE also  discussed
the   EEOC   action,  albeit  under  the  heading  "business
history,"  and  concluded  it, too,  constituted  a  "single
incident"  of gender discrimination, which neither  rose  to
the level of being substantial, nor had a negative impact on
Ms.  Toalson's  entry into or advancement  in  the  business
world.  Id.  Thus, the AA/SDBCE concluded Ms. Toalson is not
socially   disadvantaged  and,  therefore,   Petitioner   is
ineligible for SDB certification.  Id.

                     The Appeal Petition

     Petitioner  asserts  the  AA/SDBCE's  determination  is
arbitrary  and capricious.  Regarding employment, Petitioner
asserts   the  AA/SDBCE  erroneously  treated   the   gender
discrimination  at  Green as a single  incident,  where  the
discrimination  was  pervasive and  ongoing  for  23  years.
Further,  because Green paid its female employees much  less
than  its male employees, Ms. Toalson lacked money to  start
her  business  and her pension from Green is less  than  her
husband's pension.  Thus, the discrimination did affect  her
in the business world.
     
     Petitioner  presents  additional facts  not  previously
submitted to the AA/SDBCE.  Regarding employment, Petitioner
asserts  the  man  who retired from the sales  correspondent
position  made three times what Green offered  Ms.  Toalson.
Further, Petitioner asserts newly hired men in Ms. Toalson's
department  made the same as she did after  years  of  work.
Regarding  business history, Petitioner asserts that  Green,
the largest shipper in town, refused to give Ms. Toalson any
business for five years.  Thus, Green's refusal bore on  her
success in the business world.
     
     Petitioner  also presents on appeal two  documents  not
previously  submitted to the AA/SDBCE.   These  are:  (1)  a
Disadvantaged  Business  Enterprise  recertification  letter
from  the  St.  Louis Airport Authority; and  (2)  a  Social
Security Earnings Statement.
     
                       The SBA's Answer

     SBA   asserts  the  AA/SDBCE's  determination  is   not
arbitrary, capricious, or contrary to law because Petitioner
failed to meet its evidentiary burden of proving Ms. Toalson
had    suffered   social   disadvantage.    In   particular,
Petitioner's  claims of gender discrimination lack  specific
instances   and  sufficient  detail  to  show  chronic   and
substantial social disadvantage.
     
     Regarding employment, SBA asserts that, although  Green
forced  Ms.  Toalson to quit work with each pregnancy,  this
claim  does not rise to the level of substantial and chronic
discrimination  because  Green hired  her  back  each  time.
Answer at 8.  SBA also asserts the EEOC complaint "does  not
lend  strong  support" to Ms. Toalson's social  disadvantage
claim  because  Green settled the matter  without  admitting
guilt.   Id.   Further, the EEOC complaint  does  not  prove
Ms.   Toalson  personally  suffered  gender  discrimination.
Answer at 9.  Finally, Petitioner did not establish a  nexus
between   the   alleged   employment   discrimination    and
Ms.  Toalson's  entry into or advancement  in  the  business
world.  Id.
     
     Regarding  business  history,  SBA  asserts  Petitioner
failed  to show any gender-based reason why Green's shipping
manager refused to give Ms. Toalson any business.  Id.
     
     SBA  opposes Petitioner's introduction of new  evidence
on  appeal,  because  Petitioner has  not  established  that
manifest injustice would occur if the appeal were limited to
the record.
     
     
                          Discussion
                              
                      Threshold Matters
                              
     Petitioner  filed its Appeal Petition  within  45  days
after  SBA  denied  its SDB application  and,  thus,  it  is
timely.  13 C.F.R. Sections 134.202(a), 134.204(e)(2).
     
     The    Administrative   Judge   EXCLUDES   Petitioner's
proffered  new  evidence.  The regulations explicitly  limit
the Administrative Judge's review of an SDB determination to
the   facts  before  the  AA/SDBCE  at  the  time   of   the
determination,  and to the arguments on appeal.   13  C.F.R.
Section  124.1008(f)(3)(ii).  The Administrative Judge  will
admit new evidence only if she determines manifest injustice
would  occur if she does not do so (id.); that  is,  if  her
failure  to  admit the evidence would be plainly wrong,  and
would result in substantial prejudice to the Petitioner.  In
the  Matter  of Alloy Specialties, Inc., No. SDBA-108  at  5
(1999).  Here, Petitioner's new evidence does not meet  this
standard,  because  Petitioner's appeal neither  pleads  nor
demonstrates manifest injustice.
     
                     Merits of the Appeal
                              
     An  SDB applicant must demonstrate to the AA/SDBCE that
disadvantaged  individuals own and  control  the  firm.   13
C.F.R.  Section  124.1008(c)(2).  In determining  whether  a
firm  meets this requirement, the AA/SDBCE applies the  same
criteria   used  for  the  8(a)  BD  program.    13   C.F.R.
Section  124.1002(a);  In  the  Matter  of  Trisha  Koch   &
Associates,  No.  SDBA-113  at  4  (1999).   This   criteria
includes the decisions of this Office and the Federal courts
interpreting  the  applicable 8(a) BD regulations.   In  the
Matter  of  Hernandez Engineering, Inc., No. SDBA-132  at  7
(2000).   The  AA/SDBCE must examine the relevant  data  and
articulate  a  satisfactory  explanation  for  her   action,
including a "rational connection between the facts found and
the  choice made."  In the Matter of IRECOR, Inc., No. SDBA-
104 at 5 (1999).
     
     On   appeal,  the  Administrative  Judge  applies   the
following    standard   of   review   to   the    AA/SDBCE's
determination:   whether   the   record   demonstrates   the
AA/SDBCE's  determination  was  "arbitrary,  capricious,  or
contrary  to  law."   13 C.F.R. Section  124.1008(f)(3)(ii).
The specific issue on appeal here is whether Ms. Toalson  is
socially disadvantaged because of her gender.  Based on  the
record in this case, the Administrative Judge concludes  the
AA/SDBCE's  determination that Ms. Toalson is  not  socially
disadvantaged, was correct.
     
     Where an individual on whom SDB eligibility is based is
not   a   member  of  a  group  presumed  to   be   socially
disadvantaged  (13 C.F.R. Section 124.103(b)(1)),  as  here,
the  applicant must establish individual social disadvantage
by   a   preponderance   of   the   evidence.    13   C.F.R.
Sections  124.103(c)(1), 124.1008(e)(2)(i).  To sustain  its
burden of persuasion under the preponderance of the evidence
standard,  the  applicant  must  present  to  the   AA/SDBCE
evidence  which  is of greater weight, or  more  convincing,
than  the  evidence  offered in  opposition;  that  is,  the
evidence  as  a whole must show that social disadvantage  is
more  probable than not.  In the Matter of Henze Industries,
No. SDBA-111 at 10 (1999).
     
     In  evaluating  claims  of  social  disadvantage,  this
Office recognizes that the applicant's own statements,  such
as  those  made in the narrative, may be the only  available
evidence of particular incidents of discrimination.  In  the
Matter  of  Bitstreams, Inc., No. BDP-122 at 13 (1999).   In
those instances, the lack of corroborative evidence does not
necessarily  render a claim legally insufficient.   However,
in instances where other evidence apparently is available to
support   a   claim,  but  the  applicant   fails,   without
explanation, to present that evidence, the SBA may  consider
the  lack of corroboration in weighing the evidentiary value
of  the  applicant's statement.  Bitstreams, No. BDP-122  at
14, 16.
     
     Further, this Office has held that SBA may discount  or
disbelieve  applicant statements that are inconsistent  with
other,  credible,  evidence  in  the  record  showing,   for
instance,   a   particular   incident   complained   of   is
attributable to a nondiscriminatory cause.  In the Matter of
SKJ  &  Associates, Inc., No. SDBA-134 at 6 (2000);  In  the
Matter  of  MJ King & Associates, No. SDBA-129 at 6  (2000);
Bitstreams, No. BDP-122 at 17.
     
     This  Office  also has held that SBA  need  not  credit
statements that are insufficiently detailed to be convincing
(Bitstreams,  No.  BDP-122 at 15), or  statements  that  are
entirely speculative.  In the Matter of Sierra Environmental
Services,  No. MSB-550 at 13 (1996).  This Office  also  has
suggested,  in  dicta,  that  SBA  may  discount  inherently
improbable evidence.  Bitstreams, No. BDP-122 at 14.
     
      An  SDB  applicant's  evidence  of  individual  social
disadvantage  must include the following  elements:  (i)  at
least   one  objective  distinguishing  feature   that   has
contributed   to  social  disadvantage,  such   as   gender;
(ii)  personal experiences of substantial and chronic social
disadvantage in American society; and (iii) negative  impact
on  entry into or advancement in the business world  because
of  the disadvantage.  13 C.F.R. Section 124.103(c)(2).  SBA
will  consider  any  relevant  evidence  in  assessing  this
element.   Id.   In every case, however, SBA  will  consider
education,   employment   and   business   history,    where
applicable,  to  determine  whether  the  totality  of   the
circumstances  shows  disadvantage  in  entering   into   or
advancing    in    the    business   world.     13    C.F.R.
Section 124.103(c)(2)(iii).
     
     It  is  undisputed  that Petitioner has  satisfied  the
first  element,  as Petitioner has alleged  Ms.  Toalson  is
disadvantaged because of her gender.  What is  contested  is
whether  Petitioner  has  satisfied  the  second  and  third
elements;  that  is,  whether Ms. Toalson's  experiences  of
gender-based   social  disadvantage  were  substantial   and
chronic, and whether a sufficient nexus exists between those
experiences  and  her  entry  into  or  advancement  in  the
business world.
     
     
     An  applicant need not address each of the three  areas
(education, employment and business history) listed  in  the
regulation  to  establish social disadvantage.   Bitstreams,
No.  BDP-122  at  8; 62 Fed. Reg. 43584, 43587  (August  14,
1997)  (preamble  to  proposed Section  124.103(c)(2)(iii)).
Here,  Petitioner did not claim Ms. Toalson was deprived  of
educational  opportunities that prevented her from  entering
into   or  advancing  in  the  business  world.   Petitioner
addressed only her employment and business history.

                        1. Employment
                              
                   a.  No Maternity Leave
     
     The  AA/SDBCE concluded Ms. Toalson had established one
"incident"  of gender-based discrimination as  a  result  of
Green's "hiring process," but concluded the incident was not
substantial  or  chronic.  The Administrative  Judge  agrees
with  the  AA/SDBCE  that  Petitioner  has  established  she
suffered gender-based discrimination as a result of  Green's
"hiring process" or, more specifically, because Green lacked
a maternity leave policy.
     
     Petitioner  has  shown Ms. Toalson lost  her  seniority
three  times  because  she  was  forced  to  terminate   her
employment with each pregnancy.  However, Petitioner has not
established that this discriminatory act, which  appears  to
have affected her in the years 1956-61, was substantial  and
chronic, or that it impeded her entry into or advancement in
the   business  world  many  years  later.   Therefore,  the
Administrative Judge concludes that Petitioner did not  show
Ms.  Toalson  has satisfied either the second or  the  third
required  element  of  individual social  disadvantage  with
respect to Green's lack of a maternity leave policy.
                              
                       b.  EEOC Action
     
     The  AA/SDBCE concluded Ms. Toalson had established one
"incident"  of gender-based discrimination as  described  in
the  EEOC  action,  but concluded the incident  neither  was
substantial nor had a negative impact on her entry  into  or
advancement in the business world.
     
     The   Administrative  Judge  agrees  the  EEOC   action
establishes that Ms. Toalson, as a member of the class,  has
suffered some gender-based discrimination in the time period
up  to  1973.   However, the EEOC charges  broadly  included
promotions, wages, job classifications, job assignments, and
general  terms and conditions of employment, and  Petitioner
has  not established how any of this discrimination affected
Ms. Toalson personally.
     
     On  the  contrary, the record shows Ms. Toalson  was  a
supervisor  in  the  export  department,  a  position  which
contradicts  the charging party's claim that there  were  no
women  in  supervisory positions.  Compare AR at Exhibit  5E
(Ms.  Toalson's  resume) with Exhibit 5A  (charging  party's
letter   to  Ms.  Toalson).   Further,  Green  made  vacancy
information available and had an established pay  scale  for
the sales correspondent position.  Compare AR at Exhibit  5A
(Green  file  notes  dated  March  1977)  with  Exhibit   5A
(charging party's letter to Ms. Toalson).  These unexplained
inconsistencies  [2] in the record weaken Petitioner's  case
that  Ms.  Toalson was personally affected  by  gender-based
discrimination  at Green.  See SKJ, No. SDBA-134  at  6;  MJ
King, No. SDBA-129 at 6.  Further, no evidence in the record
suggests  the  discrimination  suffered  at  Green  had  any
negative  impact on Ms. Toalson's entry into or  advancement
in the business world.

The  Administrative Judge rejects SBA's  argument  that  the
EEOC  Conciliation Agreement itself lends little support  to
Petitioner's  claims because it contained  no  admission  by
Green  of  any  wrongdoing.  This Office  has  held  that  a
district  court's consent decree may be used to  corroborate
an  8(a)  applicant's claim of discrimination,  even  though
that  decree, by its terms, did not constitute an  admission
of  discrimination.   In  the Matter  of  Informed  Decision
Services,  Inc., No. MSB-518 at 9 (1995).  Because  an  EEOC
conciliation  agreement is similar  to  a  district  court's
consent  decree  in  that  both  are  settlement  agreements
disposing of claims in litigation, the Administrative  Judge
concludes  the EEOC Conciliation Agreement may  be  used  to
corroborate   an   SDB   applicant's  specific   claims   of
discrimination.
                              
  c.  Attempts to Transfer Within the Company, Resignation,
                         and Pension
                              
     The  AA/SDBCE  did  not  discuss in  the  determination
letter  Ms.  Toalson's  unsuccessful  attempts  to  transfer
within the company, her resignation, and her pension.  Thus,
the   Administrative  Judge  cannot  ascertain  whether  the
AA/SDBCE examined Petitioner's claims on these subjects  and
found them lacking in merit, or whether the AA/SDBCE ignored
these  portions  of Petitioner's evidence. [3]  Nonetheless,
after examining the evidence relating to these subjects, the
Administrative Judge concludes the AA/SDBCE could only  have
found Petitioner's claims on these subjects lacking merit.
     
     Petitioner has not proven, or even alleged, any gender-
based  reason  for  Ms. Toalson's unsuccessful  attempts  to
transfer  within the company.  On the contrary, the evidence
from  Ms.  Toalson's personnel file at Green  clearly  shows
Ms.  Toalson  was offered the sales correspondent  position,
but  rejected  it because she did not like the  $885  salary
offer.  [4] As for the project manager positions, the  Green
file  notes show Ms. Toalson was not considered  for  a  non
gender-based  reason, but because she lacked  the  necessary
technical qualifications.  SKJ, No. SDBA-134 at 6; MJ  King,
No. SDBA-129 at 6.
     
     Regarding Ms. Toalson's resignation, the Administrative
Judge  concludes,  based  on  Ms. Toalson's  contemporaneous
letter,  she  resigned  because of a disagreement  over  the
staffing  level  in  her department.   Thus,  Ms.  Toalson's
resignation    was    unrelated    to    any    gender-based
discrimination.
     
     Regarding   the  pension  issue,  although   Petitioner
provided  to  the  AA/SDBCE  the amounts  of  the  Toalsons'
pensions  and  the  number of years Ms. Toalson  worked  for
Green,  Petitioner did not provide other evidence,  such  as
the length of Ms. Toalson's service there, their pay levels,
and  other comparative information.  This information  would
bear  on  the  amount of each pension and,  thus,  would  be
essential to Petitioner's claim that the difference  in  the
pensions is attributable to chronic and substantial  gender-
based   discrimination.   This  information  apparently   is
available,  either  from  the Toalsons  themselves  or  from
Harbison,  yet  Petitioner,  without  explanation,  did  not
provide  it.  Thus, the AA/SDBCE could not give much  weight
to   Petitioner's   claims  on  the  pension   issue.    See
Bitstreams, No. BDP-122 at 14, 16.
     
     Further,  even if Ms. Toalson could show the difference
in  the pensions was due to gender-based discrimination, she
also  would  have  to  demonstrate how  this  discrimination
affected  her  entry  into or advancement  in  the  business
world.  This she failed to do.
     
     
                     2. Business History
                              
     The  AA/SDBCE  did  not  discuss in  the  determination
letter  Ms. Toalson's business history.  Nonetheless,  after
examining  the  record  evidence relating  to  her  business
history,  the  Administrative Judge concludes  the  AA/SDBCE
could  only  have  found  Petitioner's  claims  relating  to
Ms. Toalson's business history lacking merit.
     
     Ms.  Toalson's narrative asserted there are  "many  men
who  simply  will not deal with women," and "several  cases"
where shipping managers believe women cannot know as much as
men  do, and then discussed the case of one shipping manager
at Green.  AR at Exhibit 5.  Because Petitioner presented no
evidence  on any of the other men or other cases, and  these
statements are insufficiently detailed to be convincing, the
Administrative Judge concludes the AA/SDBCE would  not  have
given credence to these statements.  Bitstreams, No. BDP-122
at 15.
     
     Petitioner's  assertion that Green's  shipping  manager
would  tell Green Ms. Toalson had no trucks available  when,
in fact, Ms. Toalson had trucks available, is insufficiently
detailed  to  be  convincing, particularly where  Petitioner
does not identify the source of such information.
     
     Even  if  Petitioner could show that the Green shipping
manager  discriminated against Ms. Toalson  because  of  her
gender, Petitioner has not demonstrated in any concrete  way
the  effect the alleged discrimination had on Ms.  Toalson's
firm.  [5] Thus, Petitioner has not established the required
nexus of social disadvantage to Ms. Toalson's entry into and
advancement  in  the business world.  Further,  Petitioner's
assertion  that  Ms.  Toalson suffered  because  of  Green's
alleged  refusal  to  give  her  business  appears   to   be
inconsistent  with  the  essay  on  Ms.  Toalson's  business
history, which states the workload became so heavy that  her
sons  had  to help her.  Compare AR at Exhibit 5 (narrative)
with  Exhibit 5D (essay on Petitioner's history);  see  SKJ,
No. SDBA-134 at 6; MJ King, No. SDBA-129 at 6.
     
     Finally,  Ms.  Toalson's narrative  asserted  that  the
Green  shipping manager's attitude "may have had to do with"
the  EEOC  complaint, because it was "widely  assumed"  that
Ms.   Toalson  had  filed  it.   AR  at  Exhibit  5.   These
allegations  about  the Green manager's motivation  and  the
reason for it are nothing more than speculation and are  not
supported in the record.
     
     The AA/SDBCE correctly found Petitioner's evidence fell
short  of  the  preponderance of the evidence  required  for
establishing social disadvantage.  This deficiency, however,
appears  to  result  from  a  qualitative  and  quantitative
failure   of  proof,  not  necessarily  a  conclusion   that
Ms.  Toalson did not suffer gender-based discrimination that
may have affected her success in the business world.
     
     For these reasons, the AA/SDBCE properly concluded,  on
the  basis  of  the record before her, that  Petitioner  had
failed  to  meet its burden of establishing Ms.  Toalson  is
socially  disadvantaged because of her gender.  Accordingly,
the    Administrative   Judge   concludes   the   AA/SDBCE's
determination  is  supported  by  the  record  and  is   not
arbitrary, capricious, or contrary to law.
     
                          Conclusion
                              
     Based on the Administrative Judge's conclusion that the
AA/SDBCE's  determination was not arbitrary,  capricious  or
contrary  to law, she AFFIRMS the determination, and  DENIES
the Appeal Petition.
     
     This  is  the  initial decision of the SBA.   Absent  a
request  for  review, this decision will  become  the  SBA's
final decision 30 days after the date of this decision.   13
C.F.R. Sections 134.227(b), 134.228(a) (1999).
     
     
     
     

                              ________________________________
                              GLORIA E. BLAZSIK
                              Administrative Judge

_________________________

       [1]    Because  the  AA/SDBCE's determination  letter
discussed  the  "hiring process" separately  from  the  EEOC
action, the Administrative Judge finds that "hiring process"
could  only refer to the loss of seniority that Ms.  Toalson
suffered  each time she was rehired, after being  forced  to
quit work because of pregnancy.
        [2]     It   is  unclear  whether  the  gender-based
discrimination  ended  in  1975  after  Green   signed   the
Conciliation Agreement.
       [3]    This Office lacks authority to remand  an  SDB
case  to the AA/SDBCE.  In the Matter of Unified Industries,
Incorporated,  No.  SDBA-131  at  7-8  (2000).   Thus,   the
Administrative Judge assumes the AA/SDBCE found  the  claims
lacking in merit.
     
       [4]    On appeal, Petitioner alleges the unnamed  man
who  previously had the position earned three times the $885
offered  to  her.   Even if the Administrative  Judge  could
accept   this  new  factual  information  on  appeal,   this
allegation  appears to be inconsistent with  the  position's
maximum  salary of $1030.  AR at Exhibit 5A.  See  SKJ,  No.
SDBA-134 at 6; MJ King, No. SDBA-129 at 6.  Also, Petitioner
has not shown how Ms. Toalson's skills compare with those of
the  unnamed  man, a comparison that would support  a  claim
that she was offered less money because she is a woman.
       [5]  On appeal, Petitioner asserts for the first time
that  Green was "the largest shipper in the town of Mexico,"
and  that its shipping manager's refusal to give Ms. Toalson
business   lasted   five  years.   As  noted   before,   the
Administrative  Judge  cannot accept new  facts  on  appeal.
13 C.F.R. Section 124.1008(f)(3)(ii).
     

                                          Posted: July, 2000