IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20391

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

United States Court of Appeals

Fifth Circuit

F I L E D

May 7, 2012

Lyle W. Cayce

Clerk

 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 employmentdiscrimination 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. Five people applied for this position including Criner. The 1

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 

This position was open in between the Customer Service and Lobbyist position

1

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. The district court found that she did not support that assertion in her 2

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

To satisfy the mixed-motive theory, a plaintiff need only demonstrate that her 2

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 burdenshifting framework to evaluate Criner’s discrimination claims. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, Criner 3

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

As the district court correctly noted, “[B]ecause claims of intentional discrimination

3

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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