                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 07 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

RAYMUNDO RODRIGUEZ and                           No. 09-55149
ADRIEL GUITRON,
                                                 D.C. No. 5:07 cv-0303-SGL
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

CITY OF COLTON and ERIC FRASER,
individually and as an agent of the City of
Colton,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen G. Larson, District Judge, Presiding

                       Argued and Submitted July 11, 2013
                              Pasadena, California

Before:       TASHIMA and BYBEE, Circuit Judges, and BENCIVENGO, District
              Judge.**




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
      Plaintiffs Raymond Rodriguez and Adriel Guitron (“Plaintiffs”) appeal from

the district court’s order granting summary judgment in favor of Defendants City

of Colton (the “City”) and Eric Fraser (“Fraser”) (together, “Defendants”) on their

employment discrimination and retaliation claims. Because the facts and

procedural history are familiar to the parties, we do not recite them here, except as

necessary to explain our disposition. Although no separate order was entered on

the docket below as required, see Fed. R. Civ. P. 58, the summary judgment order

was nevertheless a final judgment for purposes of our jurisdiction under 28 U.S.C.

§ 1291. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 387-88 (1978); Bravo v.

City of Santa Maria, 665 F.3d 1076, 1089 n.5 (9th Cir. 2011). We review a grant

of summary judgment de novo. Wood v. Beauclair, 692 F.3d 1041, 1045 (9th Cir.

2012).

      1.     Under the framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), once Defendants produced a legitimate, non-

discriminatory explanation for its actions, the burden shifted to Plaintiffs to show

that Defendants’ explanation was pretextual. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142-43 (2000). In order to survive Defendants’ motion

for summary judgment, Plaintiffs were required to adduce evidence “on which [a]

jury could reasonably find” for them. See Anderson v. Liberty Lobby, Inc., 477


                                         -2-
U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in support of

the plaintiff’s position will be insufficient.”). Plaintiffs’ argument that Fraser was

the ultimate decision-maker in this case is based on “undue speculation,” see

Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011), and

their “cat’s paw” argument fails because there is no evidence that any action taken

by Fraser was “a proximate cause of the ultimate employment action,” see Staub v.

Proctor Hosp., 131 S. Ct. 1186, 1194 (2011). Plaintiffs’ argument that the City’s

explanation was pretextual is equally speculative. See Pottenger v. Potlatch Corp.,

329 F.3d 740, 746-47 (9th Cir. 2003). Plaintiffs’ argument that the treatment of

Bales and Rheubottom created a genuine issue of material fact is also without merit

because those employees were not similarly situated to Plaintiffs.1 See Aragon v.

Republic Silver State Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002). In sum,

Plaintiffs’ discrimination claim is so entirely based on speculation that no “fair-

minded jury could return a verdict for [them] on the evidence presented.” See

Anderson, 477 U.S. at 252. The district court did not err in granting Defendants’

motion for summary judgment on this claim.




      1
            Bales and Rheubottom had engaged in misconduct unrelated to this
case. They were given progressive discipline before being terminated.

                                          -3-
      2.     In order to make out a claim for retaliation, Plaintiffs must have

engaged in “protected activity.” See Cornwell v. Electra Cent. Credit Union, 439

F.3d 1018, 1034-35 (9th Cir. 2006); Miller v. Dep’t of Corr., 115 P.3d 77, 94 (Cal.

Ct. App. 2005). Although a plaintiff need not understand the exact legal bases or

ramifications of his activities in order to receive protection, those activities must

plausibly bear some relation to discrimination on the basis of a protected

characteristic. See Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417,

422 (9th Cir. 2013). Here, the complaint about departmental resources was not

plausibly related to any form of unlawful discrimination. Accordingly, it was not

protected activity, and Plaintiffs failed to make out a prima facie claim of

retaliation. See Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411-12 (9th Cir.

1987).

      3.     Finally, we lack jurisdiction over Plaintiffs’ appeal from the district

court’s order granting Defendants’ motion for attorneys’ fees. The district court

never determined the amount of fees due, and a finding of liability without a

determination of the extent of that liability is not a final judgment. See Brown v.




                                          -4-
U.S. Postal Serv., 860 F.2d 884, 886 (9th Cir. 1988). Accordingly, we must

dismiss this portion of Plaintiffs’ appeal.2

                                         •!•

      The district court’s decision dismissing Plaintiffs’ claims on summary

judgment is affirmed, but the appeal from the district court’s order granting

Defendants’ motion for attorneys’ fees is dismissed for lack of appellate

jurisdiction. Costs awarded to Defendants.

      AFFIRMED in part and DISMISSED in part.




      2
              The district court granted Defendants’ fees motion (without specifying
the amount of the award) in June 2009, but the assigned district judge resigned
from the bench shortly thereafter without entering a final order on the fees motion.
In spite of the parties’ best efforts, however, this case has not been reassigned to
another district judge. Thus, this motion has not yet been finally resolved. On
remand, the United States District Court for the Central District of California
should promptly reassign this case to another judge for resolution.

                                          -5-
