     Case: 11-20391     Document: 00511847658         Page: 1     Date Filed: 05/07/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            May 7, 2012

                                       No. 11-20391                        Lyle W. Cayce
                                                                                Clerk

LINDA CRINER,

                Plaintiff - Appellant

v.

TEXAS - NEW MEXICO POWER COMPANY; PNM RESOURCES,
INCORPORATED; TNP ENTERPRISES, INCORPORATED; FIRST CHOICE
POWER, LIMITED PARTNERSHIP,

                Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3859


Before STEWART, CLEMENT, and GRAVES Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
        Linda Criner, a black woman, filed suit against her employer, Texas-New
Mexico Power Company (“TNMP” or the “Company”), and various related
entities (the “Defendants”), alleging race and sex discrimination claims under
42 U.S.C. § 2000e-2 (“Title VII”), and race discrimination claims under 42
U.S.C. § 1981. She asserted both disparate treatment and disparate impact

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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theories. The Defendants moved for summary judgment on Criner’s claims, and
the district court granted their motion and dismissed all her claims. We
AFFIRM.
                        FACTS AND PROCEEDINGS
      Criner has worked for Texas-New Mexico Power as a community affairs
specialist since 1994. She alleges that she has consistently asked her supervisors
what training she needs to become eligible for promotions and to make that
training available to her. In May 2006, when a customer service manager
position opened (“Customer Service” position), Criner was not given an
opportunity to interview for the position. In November 2006, a Retail Electric
Provider Liaison-Manager position became available (“Manager” position).
Criner alleges that she had to email company management to get the job posted
and only then received an interview. She alleges that she was qualified for the
position, but that the job went to a white male because, in part, she was not
given the training opportunities the white male received to become eligible for
the position. Finally, in December 2006, a lobbyist position became available at
the company (“Lobbyist” position), and a white male was hired without the
Company posting the job or providing other employees with an opportunity to
interview for it. After petitioning the Equal Employment Opportunity
Commission (“EEOC”) and receiving permission to bring suit, Criner brought
suit under Title VII and 42 U.S.C. §1981 against Defendants alleging
discrimination based on her race and gender in not hiring her for the three
positions. TNMP moved for summary judgment.
Disparate Treatment
      The district court found that her disparate treatment claims regarding two
of the three promotions—relating to the Customer Service and Lobbyist
positions—were abandoned because she did not address them in her response to
the Company’s motion for summary judgment. With regard to the Manager

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position she interviewed for, the Company conceded that she had pled a prima
facie case of discrimination. On motion for summary judgment by the Company,
the district court found that the person hired, a white male, was clearly better
qualified for the Manager position. In rejecting all of Criner’s disparate
treatment claims, the Court employed a pretext analysis, instead of a
mixed-motive analysis, even though Criner asserted in her complaint that the
mixed-motive analysis applied to her three disparate treatment claims.
Disparate Impact
      In her response to summary judgment, Criner also asserted a disparate
impact claim stating that she was not provided with the same opportunities for
training and career advancement as whites in the company. She alleged that
management only befriended whites and that they awarded promotions to their
friends, thereby restricting the opportunities of blacks for advancement. She also
provided two affidavits of former and current black employees. The district court
found that she did not have a prima facie case of disparate impact discrimination
and that the defendants were entitled to summary judgment on that issue.
            STANDARD OF REVIEW AND APPLICABLE LAW
      We “review[] a district court’s grant of summary judgment de novo,
applying the same legal standards as the district court. Summary judgment is
proper when the pleadings and evidence demonstrate that no genuine issue of
material fact exists and the movant is entitled to judgment as a matter of law.”
Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005) (citation and
internal quotation marks omitted). “An issue as to a material fact is genuine ‘if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Kujanek v. Hous. Poly Bag I, Ltd., 658 F.3d 483, 487 (5th Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
      Judicial review of discrimination claims is “not intended to be a vehicle for
judicial second-guessing of employment decisions, nor [is] it intended to

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transform the courts into personnel managers.” Bodenheimer v. PPG Indus. Inc.,
5 F.3d 955, 959 (5th Cir. 1993). To find for the plaintiff in an employment-
discrimination context, this court must find that there was an impermissible
motive in making the employment decision. See LeMaire v. La. Dep’t of Transp.
& Dev., 480 F.3d 383, 391 (5th Cir. 2007). Employers are entitled to summary
judgment “if the record conclusively revealed some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff created only a weak issue
of fact as to whether employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had occurred.”
Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 148 (2000).
                                  DISCUSSION
A. Disparate Treatment
Customer Service Position
      Criner claims that she was passed up for the Customer Service position
because of her race and gender. The Company contends that she was not passed
up for any position, but that because of a corporate reorganization precipitated
by the unit head leaving the Company, additional responsibilities were given to
a person who was already in a Customer Service position. Because of the
reorganization, this person was given some managerial duties over meter
readers and team assistants in addition to his previous duties. The person who
took the position, Roy Jackson, had extensive prior management experience, has
a CPA, was with the company for over 20 years, and had previously supervised
people in a similar capacity as he would under the new job. Criner alleged in her
complaint that she was “clearly more qualified” than Jackson, yet during her
deposition she did not know the duties of the job, what background was needed,
and admitted she had never managed or supervised other people at TNMP and
did not have any experience with the installations or maintenance that were
part of the responsibilities of the job.

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      The district court dismissed this claim because she failed to defend it in
her response to the Company’s motion for summary judgment. Under Federal
Rule of Civil Procedure 56(c)(1)(A), “[a] party asserting that a fact cannot be or
is genuinely disputed must support the assertion by . . . citing to particular parts
of materials in the record.” See also Scales v. Slater, 181 F.3d 703, 708 n.5 (5th
Cir. 1999) (noting that the plaintiff abandoned her disparate impact claim in
district court when she neither contested defendant’s arguments for dismissal
of that claim nor demonstrated that her statistical evidence demonstrated
pretext).
      In responding to this dismissal on appeal, Criner cites to the following part
of her response to the motion for summary judgment to show that she defended
this claim:
      Defendants [sic] articulated reasons for hiring Roy Jackson for the
      Customer Service position fail to overcome the inference of
      discrimination because while Defendants allege that Roy Jackson
      had management experience, Defendants fail to address Plaintiff’s
      contention that she had been denied opportunities to act as a
      supervisor or manager.

The problem with this argument is that it is not clear from her initial response
whether she was defending the disparate treatment claims, or arguing a
disparate impact claim. The surrounding sentences in that paragraph of her
response all cite to cases that she describes as involving disparate impact claims.
In the sentence following the one she now cites, Criner argued “[D]efendants
have failed to explain why Mr. Jackson’s hiring . . . is not an example of exactly
the sort of disparate treatment that Plaintiff alleges has a disparate impact on
her and other minorities in her class.” (emphasis added). It is unclear from her
arguments, both in response and in her briefing before this court, how she has
not waived her disparate treatment claim when the statement she has put forth
to support non-waiver is in fact a disparate impact argument. Because Criner


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did not make a disparate treatment argument before the district court, it is
waived as it relates to the Customer Service position. “If a party fails to assert
a legal reason why summary judgment should not be granted, that ground is
waived and cannot be considered or raised on appeal.” Keenan v. Tejeda, 290
F.3d 252, 262 (5th Cir. 2002).
Lobbyist Position
      Criner claims that she was passed over for a promotion to the Lobbyist
position that also went to Jackson. This position needed to be filled shortly after
Jackson took the Customer Service position, when Ernie C’deBaca, a Vice
President of Government Affairs for TNMP’s sister company, PNMP, decided
that he needed a full-time presence at the Texas Legislature. This position was
not posted and no one applied for the position because time was of the essence
as the state legislative session was about to begin. According to TNMP, C’deBaca
explained this need to TNMP’s Vice President, Neal Walker, who in turn
suggested loaning Jackson to C’deBaca to fill the immediate need. C’deBaca
interviewed Jackson twice and temporarily assigned him to the Lobbyist
position. It is unclear if anyone else was considered for this position. Jackson’s
previous job, the Customer Service position, went unfilled.
      Criner alleged in her complaint that she was clearly more qualified for the
Lobbyist position than Jackson and that she was discriminated against based on
race and gender. As with the Customer Service position, which also went to
Jackson, Criner could not state during her deposition what the responsibilities
of the position were, nor could she describe Jackson’s qualifications. In addition,
Criner was not known to C’deBaca, who only knew of Jackson because he was
offered as a loan from Walker.
      The district court deemed Criner’s disparate treatment claim regarding
the Lobbyist position waived for her failure to press it in the response to the



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motion for summary judgment. Criner cites to the following portion of her
response as adequate to preserve her disparate treatment claim:
      Defendants’ articulated reasons for hiring Roy Jackson for the
      lobbyist position fails [sic] to overcome the inference of
      discrimination, because Defendants have failed to explain why Mr.
      Jackson’s hiring for an unpublicized position based on a
      word-of-mouth recommendation is not an example of exactly the sort
      of disparate treatment that Plaintiff alleges has a disparate impact
      on her and other minorities in her class.

(emphasis added). While this is a confused argument since it uses the terms
disparate treatment and disparate impact together, the immediately adjoining
citation makes it clear that Criner’s response raised only a disparate impact
rather than a disparate treatment claim:
      Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000)(where the Fifth
      Circuit Court of Appeals held that unlike disparate treatment,
      disparate impact claims do not require evidence of an intent to
      discriminate, only that a facially neutral policy results in disparities
      and disadvantages to a protected group).

(emphasis added). Because she did not defend her disparate treatment claim as
it related to the Lobbyist position, the district court dismissal was proper, and
Criner has not preserved the argument for appeal.
Manager-REP Liaison
      Criner also argues disparate treatment for her failure to be awarded a
Manager position.1 Five people applied for this position including Criner. The
position required managing field operations personnel, implementing a new
software program, overseeing future software projects, assisting with tariff
compliance and fees, creating procedures for trading purchase agreements, and
assisting in some oversight of customer care. All applicants were interviewed


      1
           This position was open in between the Customer Service and Lobbyist position
opening.

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by a three-member panel and were separately graded on a scale of 1-5. The
scores were totaled and Criner received the second highest score of 68. The
person who ultimately received the position, Tim Gerdes, received a score of 125.
As the district court correctly noted, “[A]lthough Plaintiff had a college degree,
which Gerdes did not, Gerdes had prior experience implementing new software
programs and also had previous management experience within the Power
Company and its affiliate, First Choice.”
       Although Criner alleged in her complaint that mixed-motive analysis
applied, the district court dismissed her disparate treatment claim using pretext
analysis.2 The district court found that she did not support that assertion in her
presentations to the court stating, “she has presented no evidence or arguments
relating to a mixed-motive theory of discrimination. Because she has not
advanced a mixed-motive theory, her claim is analyzed only for evidence of
pretext.” We agree with this conclusion.
       TNMP did not mention the mixed-motive analysis in its summary
judgment filings, and Criner did not press the mixed-motive analysis in her
response. In fact, the terms “mixed-motive” appeared nowhere in her initial
response to TNMP’s summary judgment motion or in her supplemental
response. This court has previously held that in a mixed-motive case, if “a party
wishes to preserve an argument for appeal, the party must press and not merely
intimate the argument during the proceedings before the district court.” Keelan,
407 F.3d at 340 (internal quotation marks omitted). An argument must be raised
to such a degree that the district court has an opportunity to rule on it. Id. The
district court need not sift through the record for evidence supporting a party’s


       2
         To satisfy the mixed-motive theory, a plaintiff need only demonstrate that her
protected characteristic was one factor in the company’s decision not to promote her. The
company then must establish that the same adverse employment decision would have been
made regardless of discriminatory intent. See Keelan v. Majesco Software, Inc., 407 F.3d 332
340-41 (5th Cir. 2005).

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opposition to summary judgment. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998). Criner did not adequately press a mixed-motive argument
before the district court. As such, the district court was correct in applying the
pretext analysis to Criner’s claims because Criner waived her mixed-motive
theory.
       Having determined that the district court properly applied a pretext
analysis, we must review the court’s ultimate decision to grant summary
judgment to the defendants. This court uses the McDonnell Douglas burden-
shifting framework to evaluate Criner’s discrimination claims. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).3 Under McDonnell Douglas, Criner
must first create a presumption of unlawful discrimination by showing evidence
of a prima facie case. To establish the prima facie case for her failure to promote
claim, she must show that: 1) she is a member of a protected class; 2) she sought
and was qualified for an available position; 3) she was not selected; and 4) the
Company either awarded the position to someone outside the protected class, or
continued to seek applicants with the same qualifications as Criner. Medina v.
Ramsey Steel Co., Inc., 238 F.3d 674, 680-81 (5th Cir. 2001). Once Criner
articulated a prima facie case, the Company was required to articulate and
produce evidence of a legitimate, non-discriminatory reason for its actions.
Because the Company had done so, the burden shifts back to Criner to show that
the reason is merely pretext for discrimination. Davis v. Dall. Area Rapid
Transit, 383 F.3d 309, 317 (5th Cir. 2004).
       Both parties agree that Criner established a prima facie case.                     The
company offered up the non-discriminatory reason that Gerdes was more


       3
         As the district court correctly noted, “[B]ecause claims of intentional discrimination
brought under Title VII and Section 1981 require the same proof to establish liability,
Plaintiff’s discrimination claims [can] be analyzed under the Title VII rubric of analysis.”
(quoting Byers v. Dall. Morning News, Inc., 209 F.3d 419, 422 n.1 (5th Cir. 2000)) (internal
quotation marks omitted).

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qualified. The burden therefore shifts back to Criner who can either 1) show that
the explanation is false or unworthy of credence; or 2) prove she is clearly better
qualified than the person selected for the position. Burrell v. Dr. Pepper/Seven
Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007). The district court found
that Criner presented no evidence that TNMP’s explanation was unworthy of
credence. As she did at the district court, Criner hinges her arguments before
this court on the subjective nature of the hiring decision and the interview
process. In addition, she lists numerous reasons only tangentially related to the
ultimate hiring decision for the Manager position. Of those reasons, only two
have any merit. First, Criner argues that she has a college degree and Gerdes
does not. Second, she argues that one of the members of the interview panel is
friends with Gerdes and suggested he apply for the job opening, but did not
suggest the same to Criner or any other black employee.
      These two factors are inadequate to show that TNMP’s non-discriminatory
reason for hiring Gerdes was false or unworthy of credence. At best they show
that there were subjective factors that went into the interview process, e.g., the
weighing of experience versus education credentials—something that no one
disputes. The Supreme Court has stated numerous times that a subjective
decision making process does not raise inferences of discriminatory conduct. See
Watson v. Forth Worth Bank & Trust, 487 U.S. 977, 990 (1998) (“[A]n employer’s
policy of leaving promotion decisions to the unchecked discretion of lower level
supervisors should itself raise no inference of discriminatory conduct.”); see also
McDonnell Douglas, 411 U.S. at 798 (rejecting the premise that, because the
“stated reason for refusing to rehire respondent was a subjective rather than
objective criterion,” that reason was entitled “little weight in rebutting charges
of discrimination”). In addition, this court has previously decided that an
employer’s decision to hire an individual without a college degree, but with
substantial relevant work experience, over an individual with a college degree

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is not sufficient to establish pretext. See Price v. Fed. Express Corp., 283 F.3d
715, 722-23 (5th Cir. 2002). On the whole, Criner failed to present sufficient
evidence from which a fact finder could reasonably conclude the Company’s
proffered reason was false.
      Criner therefore must show that she was clearly more qualified for the job
than Gerdes. The district court found that she could not do this, and we agree.
Not only did Gerdes have significant experience both managing individuals and
implementing and overseeing software—two areas in which Criner lacked
experience—the score on the interviews is evidence she was not as qualified as
Gerdes. Barring some indication that the questions or scores were tainted by
racial preferences or bias, they are objective indicators that Gerdes was better
qualified. Considering the interview scores and Gerdes’ superior experience, a
jury could not conclude that Criner was clearly better qualified. We therefore
affirm the grant of summary judgment in favor of the defendants as it applies
to Criner’s disparate treatment claims.
B. Disparate Impact
      In her response to TNMP’s motion for summary judgment, Criner also
argued a disparate impact claim, stating that her lack of qualifications for
promotion was attributable to Defendant’s failure to provide her with the same
training and career opportunities provided to white employees. To support this
allegation, she offered testimony from two other black employees suggesting that
TNMP is a racist employer. She also presents non-aggregated statistical data
that supposedly shows that blacks are minorities at TNMP and are not in
management positions. The district court rejected this argument and granted
summary judgment to the Company.
      After reviewing the proceedings below, we hold that Criner waived her
disparate impact claims by presenting them for the first time in her response to
a motion for summary judgment. See Cutrera v. Bd. of Supervisors of La. State

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Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not raised in the
complaint but, rather, is raised only in response to a motion for summary
judgment is not properly before the court”).
                               CONCLUSION
      We therefore AFFIRM the decision of the district court regarding Criner’s
disparate treatment and disparate impact claims.




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