In this case the regulations were strictly followed with no departures and the sequence of events supports the agency's decision. Additionally, neither the administrative record nor the contemporaneous statements of the decision makers shows any discriminatory motive.
The plaintiff offers as proof of discriminatory purpose the following allegations:
1) the SBA has refused admission to all non-minority women who applied since 1987;
2) some SBA officials still believe the 8(a) program is only for blacks and not for other minorities;
3) Erline Patrick, former head of 8(a) stated "no white women company will be eligible for 8(a) as long as I'm running" the program;
4) high ranking officials of SBA have acknowledged the vagueness of the regulations;
5) SBA ignored the recommendations of its own Office of Civil Rights Compliance to institute written guidelines and conduct training sessions on the regulations;
6) SBA mistreated other white women by repeatedly discouraging them from applying, delaying their applications, and denying their applications on the ground that they are not socially disadvantaged; and
7) SBA mistreated Fagan personally by attempting to discourage her from applying because she is white and by delaying action on her application and eventually denying the application without valid reasons.
Plaintiff asserts that these factors establish a de facto policy of discrimination within the SBA against white female applicants for the section 8(a) program. A recent GAO report indicates that SBA has not admitted any female non-minority applicants to the 8(a) program since 1987. Plaintiff argues that this constitutes the "inexorable zero" referred to in discrimination cases, is a clear indicator of intentional discrimination, and constitutes a prima facie case of intentional discrimination.
The Court has stated that plaintiffs must show discriminatory purpose rather than mere impact, unless they demonstrate "a clear pattern, unexplainable on grounds other than [discrimination]. . . ." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 50 L. Ed. 2d 450 , 97 S. Ct. 555 (1977). Here, the pattern of white women not being admitted to the program can be explained by acknowledging that they are not presumed disadvantaged.
Even if the Court assumes that these facts are sufficient to establish a prima facie case of discrimination, the government has shown that there was a rational, nondiscriminatory basis for the decisions the government made. Accordingly, even assuming that the plaintiff has presented a prima facie case of discrimination, the Court finds that the exclusion of white women, and for that matter white men, results because of the valid presumption of social disadvantage for minorities. The affidavits submitted by the SBA officials who reviewed the application indicate that each determined the application was deficient for two independent, nondiscriminatory reasons: the plaintiff did not demonstrate a likelihood of success and the plaintiff had failed to demonstrate by clear and convincing evidence that she was socially disadvantaged.
Although the plaintiff puts a great amount of importance on the statistics that demonstrate the agency's failure to accept non-minorities to the program, even of those individuals presumed to be socially disadvantaged, less than 50% gain admission into the program. This is primarily because of the requirement that the applicant also demonstrate ability to succeed, pursuant to the directives of Congress.
The plaintiff has failed to show that she was eligible for the 8(a) program and that she was not admitted because of discrimination. Here there was the independent basis for denial that she did not demonstrate financial capability in addition to the determination that she did not meet the criteria for socially disadvantaged.
D. Count Five:
Count five alleges that the SBA violated various constitutional and statutory provisions by discriminating against the plaintiff on the basis of her sex. However, there is no evidence that the plaintiff was discriminated against on the basis of her sex. All of her allegations and statistical information revolve around the fact that she is white, not that she is a woman. There is no evidence that white men are treated any more favorably than white females.
Accordingly, the defendant's motion for summary judgment must be granted on Count five as well.
For all of the foregoing reasons, the Court shall grant summary judgment in favor of the defendant and shall dismiss the case. An appropriate Order accompanies this Opinion.
5th Feb. 1992
Thomas F. Hogan
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 783 F. Supp. 1455.
ORDER - February 6, 1992, Filed
In accordance with the Opinion issued herewith, it is this 5th day of February, 1992 hereby
the plaintiffs' motion for summary judgment is DENIED; and it is further
that the defendant's motion for summary judgment is GRANTED; and it is further
that the above-captioned case is dismissed.
Thomas F. Hogan
United States District Judge