of his race or nationality. For the reasons contained in this
memorandum opinion and order, defendants' motion is denied.
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
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
(3) Despite his qualifications, he was rejected (in this
(4) After the rejection, the position remained open and the
employer continued to seek applicants of complainant's
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
(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