Miscimarra

MEMORANDUM *

Fred Miscimarra appeals the district court’s grant of summary judgment in fa *583 vor of his former employer, Home Depot U.S.A., Inc., on his claims of sexual harassment and retaliation in violation of Title VII. We have jurisdiction under 28 U.S.C. § 1291 , and review de novo the district court’s grant of summary judgment. See Porter v. California Dep’t of Corr., 419 F.3d 885, 891 (9th Cir.2005). We must view the evidence in the light most favorable to Miscimarra, making all reasonable inferences in his favor. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002). We conclude that there is a genuine issue of material fact and reverse the grant of summary judgment as to Miscimarra’s sexual harassment claim. We affirm the district court’s grant of summary judgment as to Miscimarra’s retaliation claim.

I.

To establish the existence of a hostile work environment, a plaintiff must show that “(1) [he] was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.” Porter, 419…

concurring and dissenting.

I concur in the court’s holding as to retaliation. I dissent as to the sexual harassment claim. If anyone was to be sued, it was the plaintiffs immediate boss, not the employer with the deep pocket.