Sherman v. Yakahi

• Decision Date: 02 February 1977
• Docket Number: No. 76-2880,76-2880
• Citation: 549 F.2d 1287
• Parties: 13 Empl. Prac. Dec. P 11,550 Jake SHERMAN, Plaintiff-Appellant, v. Seiko YAKAHI et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

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.

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 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 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 hearing. ¹⁰ Specifically, Section 5.13 of Rule 5 gives the employee the right to present closing arguments and to call a reasonable number of witnesses.

Appellees argue that because Sherman's name was restored to the list for further employment, the outcome of the hearing was favorable to him and any irregularities were inconsequential. It does appear from a reading of Section 6.03 ¹¹ that the Civil Service Commission did not have the option of returning Sherman to his original job. It does appear to have the option of returning the employee to the eligible list from which appointed, however, without any attached qualifications. Even certification to the same position and same immediate supervisor is permissible unless the termination was for disciplinary reasons. Rule 6.03(a).

Sherman's termination was not for disciplinary reasons but rather for technical incompetence. Therefore, even though the Commission was without power to overturn the termination, it could have returned Sherman to the eligible list without the qualification that he not be certified to a position with the Public Utilities Commission.

"Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures." Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1079, 39 L.Ed.2d 270 (1974). Accord Nader v. Nuclear Regulatory Commission, 168 U.S.App.D.C. 255, 513 F.2d 1045, 1051 (1975). Cf. United States v. Caceres, 545 F.2d 1182 (9th Cir. 1976). A liberal reading of Sherman's complaint indicates that he has stated a cause of action for violation of the Commission's own rules. Because there was a more favorable outcome to which Sherman might have been entitled had the hearing been conducted according to the applicable rules, the complaint should not have been dismissed for failure to state a claim upon which relief could be granted.

The rest of Sherman's allegations, not discussed here, do not merit further comment and none states a cause of action. As to those, dismissal was proper. We therefore reverse only with regard to the claim of racial discrimination and the claim of failure to follow Civil Service Commission Rule 5, Section 5.13 and we remand for further proceedings consistent with this opinion.

1 Cf. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976).

2 8.340 Dismissal During Probation Period

Any appointment to a position declared permanent by the civil service commission shall be on probation for a period of six months, provided that the probationary period for entrance positions in the uniform rank of the police and fire departments shall be for one year. At any time during the probationary period the appointing officer may terminate the appointment upon giving written notice of such termination to the employees and to the civil service commission specifying the reasons for such termination. Except in the case of uniformed members of the police and fire...