DBE Appeal Decision Case Brief: WALTER MARTIN EXCAVATING, INC.; Ref No.: 14-0101

Brief Synopsis of the Case:

Kentucky Transportation Cabinet (KYTC) denied Walter Martin Excavating, Inc.’s for several grounds related to the female owner’s control of the firm. The firm was established in 1985 by the female owner’s late husband. When he passed away in 2005 she took over as majority owner of the firm. In 2011 she hired a non-disadvantaged individual as a Senior Manager to replace three managers she had fired during the Great Recession. KYTC argued that the Senior Manager was the person in control of the firm. DOT reversed KYTC’s denial for several reasons including KYTC’s failure to specifically reference the evidence in the record supporting KYTC’s conclusions.

Holding:

The case has a couple of important holdings. First, DOT made clear that “Mere reapplication is not itself an attempt to evade or subvert; arguably, it is an attempt to correct identified eligibility deficiencies.” Second, a disadvantaged owner is not required to control all aspects of the firm’s business, in order to prove control.

Analysis:

Unfortunately, women-owned businesses often face the type of scrutiny shown in this case. Although the owner had worked alongside her husband for years before assuming control of the firm and despite the fact that she had shown the ability to run the firm, the agency concluded that a non-disadvantaged male (who she hired) was somehow in control of the company despite all of the evidence to the contrary.