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