                                                                            FILED
                             NOT FOR PUBLICATION                            APR 28 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ROSARIO MARINELLO,                               No. 09-17846

               Plaintiff - Appellant,            D.C. No. 5:08-cv-00664-JW

  v.
                                                 MEMORANDUM *
CALIFORNIA DEPARTMENT OF
CORRECTIONS & REHABILITATION,

               Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                       James Ware, Chief Judge, Presiding

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Rosario Marinello appeals pro se from the district court’s summary

judgment in his employment action alleging retaliation in violation of Title VII.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Learned v. City


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of Bellevue, 860 F.2d 928, 931 (9th Cir. 1988), and we affirm.

      The district court properly granted summary judgment because Marinello

failed to raise a genuine issue of material fact as to whether he engaged in

protected activity, and whether defendant’s legitimate, nondiscriminatory reasons

for its decision not to hire Marinello as a correctional counselor were a pretext for

retaliation. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000); see also

Learned, 860 F.2d at 932 (underlying discrimination must be reasonably perceived

as prohibited by Title VII to constitute protected activity).

      Marinello’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           2                                    09-17846
