Sherman v. Yakahi, No. 76-2880

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WRIGHT, KILKENNY and CHOY; EUGENE A. WRIGHT
Citation549 F.2d 1287
Decision Date02 February 1977
Docket NumberNo. 76-2880
Parties13 Empl. Prac. Dec. P 11,550 Jake SHERMAN, Plaintiff-Appellant, v. Seiko YAKAHI et al., Defendants-Appellees.

Page 1287

549 F.2d 1287
13 Empl. Prac. Dec. P 11,550
Jake SHERMAN, Plaintiff-Appellant,
v.
Seiko YAKAHI et al., Defendants-Appellees.
No. 76-2880.
United States Court of Appeals,
Ninth Circuit.
Feb. 2, 1977.

Page 1289

Richard Gayer (argued), San Francisco, Cal., for plaintiff-appellant.

McMorris M. Dow (argued), Deputy City Atty., San Francisco, Cal., for defendants-appellees.

OPINION

Before WRIGHT, KILKENNY and CHOY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

On appeal is the issue whether Sherman's first amended complaint states a claim upon which relief could be granted. Expressing no opinion on the merits of the underlying case, we find that two causes of action were sufficiently pleaded to withstand a motion to dismiss: (1) that Sherman's termination of employment was the result of reverse racial discrimination, 1 and (2) that the Civil Service Commission failed to follow its own procedures when inquiring into the termination. We reverse and remand for consideration of these two claims only.

FACTS

Sherman, who is Jewish, was employed as an electrical engineer with the San Francisco Public Utilities Commission. Under § 8.340 of the San Francisco Charter, 2 Sherman had to serve a six-month probationary period, during which time his appointment could be terminated by the appointing officer with written notice to the employee and the Civil Service Commission, specifying the reasons for termination.

Sherman alleges that his immediate supervisor Yakahi, of Japanese ancestry, discriminated against him by giving him a test but not giving any to the other probationary employees, all of whom were of Oriental heritage. 3 He alleges that the test results were presented at the Civil Service Commission review of the appointing officer's decision to terminate him and that the test was the only basis presented for the charge of technical incompetence. 4

At the termination hearing Sherman, although represented by an attorney, was not allowed to present his three witnesses or to make a closing argument. He was permitted to present a written chronology of events and an affidavit describing departmental procedures. His termination on the basis of lack of technical capability was upheld, but his name was restored to the

Page 1290

list of eligible 5240 Electrical Engineers with the qualification that he never be certified for a position with the Public Utilities Commission.
STANDARD OF REVIEW

The controlling standard, first enunciated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), is that an action may be dismissed for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Because Sherman was pro se at the trial stage of this proceeding, his allegations must be viewed under an even less stringent standard. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). 5

On a motion to dismiss, material allegations of the complaint are taken as admitted and the complaint is to be liberally construed in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). A pleading will not be sufficient to state a claim under the Civil Rights Act if the allegations are mere conclusions, however. Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir. 1971); Kennedy v. Landing, 529 F.2d 987, 989 (9th Cir. 1976). Additionally, the plaintiff must identify the civil rights allegedly violated in his complaint.

CIVIL RIGHTS ACT VIOLATIONS

Sherman alleges that his termination resulted from a violation of 42 U.S.C. §§ 1981, 1983 (1970) in that he was discriminated against on both racial and religious grounds.

Conclusionary allegations, unsupported by facts, have consistently been rejected as insufficient to state a claim under the Civil Rights Act. Williams v. Gorton, 529 F.2d 668, 671 (9th Cir. 1976). "It (is) incumbent upon (plaintiff) to allege with at least some degree of particularity overt acts which defendants engaged in" which support plaintiff's claim. Powell v. Workmen's Compensation Board, 327 F.2d 131, 137 (2nd Cir. 1964).

Appellees assert that the only fact Sherman alleged in support of his charge of racial bias was that three Orientals survived the probationary period while he, a Caucasian, did not. This is not accurate, however. Sherman alleged that only he was tested by the supervisor and that the test results were presented at the termination review. 6 The likelihood of appellant's success at trial is not for us to judge, but only whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, supra, 355 U.S. at 45-46, 78 S.Ct. at 102. (Emphasis added.)

Because Sherman has pleaded an overt act which, under the standard of review for pro se pleadings, gives substance to his claim of discrimination and takes it from the realm of purely unsupported, conclusionary allegations, we hold that this portion of the complaint should not have been dismissed for failure to state a claim upon which relief could be granted.

Sherman also alleges in paragraph 34 of his complaint that he, a Jew, was the only person denied permanent employment

Page 1291

with the Public Utilities Commission. This allegation is defective for failure to allege that he was terminated because of his religion. The allegation presents only some statistical facts and allows the reader to draw a conclusion. This portion of the complaint was properly dismissed.
DENIAL OF DUE PROCESS

Sherman also alleges denial of due process on a variety of grounds. To determine what process is due him, it must be determined whether he had a property or liberty interest in his employment.

Without extending this opinion unduly, we conclude that Sherman was only a probationary employee and had no interest in his employment that would entitle him to any hearing beyond that provided for in the controlling regulations of the Civil Service Commission and in the applicable Charter provisions. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Cafeteria Workers v. McElroy, 367 U.S. 886, 895-96, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Jacobs v. Kunes, 541 F.2d 222, 225 (9th Cir. 1976); Jablon v. Trustees, 482 F.2d 997 (9th Cir. 1973), cert. denied,414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974).

Section 8.340 of the San Francisco Charter provides that upon being given written notice of the termination of an employee whose appointment was the result of an entrance examination "the civil service commission shall inquire into the circumstances." 7 The term "inquire" is not defined but Civil Service Commission rules do exist which apply in proceedings for the termination of a probationary employee in an entrance classification. 8

Sherman alleges that the applicable rules 9 were not followed during his termination

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hearing. 10 Specifically, Section 5.13 of Rule 5 gives the employee the right to...

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146 practice notes
  • Gibson v. U.S., No. 83-6118
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 30, 1986
    ...doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977), quoting Conley, supra 355 U.S. at 45-46, 78 S.Ct. at I. Sec. 1983 CLAIM AGAINST THE CITY Plaintiffs seek to recover damages......
  • Griffith v. Johnston, No. 88-7008
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 4, 1990
    ...v. Procunier, 801 F.2d 789, 792 (5th Cir.1986); Morrison v. City of Baton Rouge, 761 F.2d 242, 244 (5th Cir.1985); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977). Particularly when the complaint relies upon a specific constitutional provision, we have found the pleadings insufficient......
  • Bowell v. Montoya, 1:17-cv-00605-LJO-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 3, 2018
    ...with at least some degree of particularity overt acts which defendants engaged in that support Plaintiff's claim, Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977); also see McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (a complaint must make clear "who is being sued, for what r......
  • Church of Scientology of California v. Linberg, No. CV77-2654-Kn.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 14, 1981
    ...9 The Ninth Circuit authority on which the defendants rely provides no additional support for their position. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977), merely states that "conclusory allegations, unsupported by facts" have consistently been rejected as insufficient to state a ......
  • Request a trial to view additional results
146 cases
  • Gibson v. U.S., No. 83-6118
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 30, 1986
    ...doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977), quoting Conley, supra 355 U.S. at 45-46, 78 S.Ct. at I. Sec. 1983 CLAIM AGAINST THE CITY Plaintiffs seek to recover damages......
  • Griffith v. Johnston, No. 88-7008
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 4, 1990
    ...v. Procunier, 801 F.2d 789, 792 (5th Cir.1986); Morrison v. City of Baton Rouge, 761 F.2d 242, 244 (5th Cir.1985); Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir.1977). Particularly when the complaint relies upon a specific constitutional provision, we have found the pleadings insufficient......
  • Bowell v. Montoya, 1:17-cv-00605-LJO-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 3, 2018
    ...with at least some degree of particularity overt acts which defendants engaged in that support Plaintiff's claim, Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977); also see McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (a complaint must make clear "who is being sued, for what r......
  • Church of Scientology of California v. Linberg, No. CV77-2654-Kn.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 14, 1981
    ...9 The Ninth Circuit authority on which the defendants rely provides no additional support for their position. Sherman v. Yakahi, 549 F.2d 1287, 1290 (9th Cir. 1977), merely states that "conclusory allegations, unsupported by facts" have consistently been rejected as insufficient to state a ......
  • Request a trial to view additional results

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