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
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 ...