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TANKHA v. COSTLE

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 ...


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