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TANKHA v. COSTLE

United States District Court, Northern District of Illinois, E.D


March 30, 1982

ASHOK TANKHA, PLAINTIFF,
v.
DOUGLAS M. COSTLE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Ashok Tankha ("Tankha") sues various officials of the United States Environmental Protection Agency ("EPA") under Title VII, alleging that EPA as Tankha's employer unlawfully discriminated against him in his conditions of employment and in discharging him on account of (1) his race (East Asian), color and national origin (Indian) and (2) his filing of charges protesting the discrimination.*fn1 Defendants have moved for summary judgment, producing an array of documents to demonstrate that Tankha was fired for incompetence, not because of his race or nationality. For the reasons contained in this memorandum opinion and order, defendants' motion is denied.

Facts*fn2

From April 1, 1979 to February 29, 1980 Tankha worked as an EPA Region V (Chicago-based) probationary employee (GS-12 level), serving as an engineer in the engineering section of the enforcement division. Tankha's job, like those of the other engineers working in his section, entailed pollution control engineering.

In early December 1979 Tankha's immediate supervisor, George Czerniak, Jr., gave Tankha an unsatisfactory performance appraisal. EPA gave Tankha 60 days to improve his performance. Shortly after the unfavorable appraisal Tankha filed an informal complaint of discrimination with EPA's Equal Employment Opportunity Office ("EEO Office").*fn3

In late February 1980 EPA "terminated" Tankha before expiration of his probationary period. Tankha had filed a formal complaint with the EEO Office about January 31, 1980. Tankha brought this action January 15, 1981.

Defendants' Summary Judgment Motion

Defendants claim Tankha has not made out a prima facie case of disparate treatment under Title VII. If so, they would be entitled to judgment as a matter of law.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) teaches what Tankha must establish in prima facie terms:

(1) He belongs to a racial minority.

(2) He applied and was qualified for a job for which the employer was seeking applicants (in illegal discharge cases, like this one, Tankha must show that he was qualified for retention).

(3) Despite his qualifications, he was rejected (in this case, terminated).

(4) After the rejection, the position remained open and the employer continued to seek applicants of complainant's qualifications.

Defendants do not dispute that Tankha can satisfy McDonnell Douglas elements (1), (3) and (4). But they contend Tankha cannot make a sufficient factual showing concerning his qualifications for retention. In sum, defendants argue no genuine issue of fact exists as to whether EPA dismissed Tankha because of incompetence. Having waded through some two inches of documents submitted in connection with this motion, this Court cannot agree.

Defendants have provided a mass of material tending to prove Tankha was incompetent. Czerniak's performance appraisal, for example, evaluated Tankha as "below average" in 9 and "average" in 7 of 16 categories. Czerniak and section chief Larry Kertcher have signed affidavits with detailed evaluations of Tankha's performance. They justify the firing decision on four grounds:

    (1) lack of thoroughness in the execution of
  engineering work, resulting in careless errors
  unacceptable for an engineer of any level;

    (2) lack of meaningful participation during
  important "113" conferences*fn4 and plant
  inspections;

    (3) lack of understanding of EPA goals,
  resulting in abrasive and inappropriate
  communications with regulated industry;

    (4) lack of motivation, initiative and proper
  attitude as evidenced by Tankha's apparent lack
  of desire to correct the deficiencies and by
  periods of inactivity at his desk.

Tankha has submitted two affidavits of his own*fn5 that engage in an almost point-by-point rebuttal of defendants' claims. For example, Tankha argues many of the stated reasons for his non-retention — like lack of understanding of policies and goals or poor performance in conferences — are "subjective" in nature and thus may be no more than pretexts for discrimination. Tankha also takes issue with defendants' characterization of the engineer's proper role at a "113" conference. Consequently he argues the more limited part he played was not a manifestation of incompetence.

As to lack of thoroughness as evidenced by careless errors, Tankha contends (Second Affidavit at 6) "my work product was approved without change or with the most modest of changes by Mr. Czerniak, Mr. Kertcher or others responsible in every instance which they now assert to support allegations of my inadequacy."*fn6 Tankha also asserts personal friction between Czerniak and him flowing at least in part from implicit criticisms of Czerniak in a memo Tankha wrote Kertcher one week before Czerniak gave Tankha the unsatisfactory performance appraisal. That could of course lessen (or even wipe out) the probative value of Czerniak's judgments as to Tankha's performance, if the ultimate trier of fact believed that Czerniak harbored a grudge against Tankha or was otherwise irrationally prejudiced against him.

Tankha's affidavits therefore plainly establish a disputed issue of fact as to his qualifications for retention. Defendants' only response is that even if that issue is disputed, they are still entitled to summary judgment because an "employer need only `articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978), quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (emphasis added).

That argument is an impermissible distortion of Furnco, and the government must know it. Furnco held, in the context of a trial, that the employer has to proffer only some nondiscriminatory reason for an employee's rejection — or non-retention — to allow a trier of fact to find that the employer had successfully rebutted plaintiff's prima facie case. In the McDonnell Douglas analysis, that simply shifts the evidentiary burden back to the plaintiff to show that the asserted reason is pretextual. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981). Tankha's massive tender of evidence plainly raises a factual question on the latter issue as well.*fn7 Defendants can offer no authority for the proposition that an employer is entitled to judgment as a matter of law simply because it can put forth some possible legal justification for the plaintiff's discharge.

Conclusion

For the reasons stated in this memorandum opinion and order, defendants' Rule 56 summary judgment motion is denied.*fn8


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