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,
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,
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.
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
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).
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.
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
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."
Sherman alleges that the applicable rules
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
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
Section 5.13 ORDER OF PRESENTATION