                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0854n.06
                           Filed: November 20, 2006

                                           No. 05-6938

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


Teodoro Toledo                                   )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
Alphonso Jackson, Secretary, United States       )    WESTERN DISTRICT OF KENTUCKY
Department of Housing and Urban                  )
Development                                      )
                                                 )
       Defendant-Appellee.



       Before: CLAY, ROGERS, Circuit Judges; KATZ, District Court Judge.*
       Rogers, Circuit Judge: Teodoro Toledo’s employment discrimination claims against the

United States Department of Housing and Urban Development falter two-thirds of the way through

the three-part McDonnell Douglas analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Toledo, a Hispanic/Pacific Islander born in 1947, established a prima facie case of both age

and national origin discrimination against HUD, which hired Stephen Schneller, a younger

Caucasian American male, as “Supervisory Public Housing Revitalization Specialist” instead of

promoting Toledo to that position. See Anthony v. BTR Automotive Sealing Sys. Inc., 339 F.3d 506,

515 (6th Cir. 2003); Grosjean v. First Energy Corp., 349 F.3d 332, 338-40 (6th Cir. 2003). HUD



       *
        The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 05-6938
Toledo v. Jackson

then articulated a legitimate, non-discriminatory reason for its decision to hire Schneller, namely that

Schneller interviewed better and had better academic credentials than Toledo. See Cox v. Ky. Dep’t

of Trans., 53 F.3d 146, 150 (6th Cir. 1995). Because Toledo offered no evidence to suggest that

HUD’s proffered reason was pretextual, his discrimination claims fail to satisfy the third McDonnell

Douglas element. For this reason, we AFFIRM the district court’s decision to grant HUD’s motion

for summary judgment and dismiss Toledo’s claims.1


        Toledo, a Hispanic native of the Phillippines, was approximately 56 years old when he

applied for a position as a Supervisory Public Housing Revitalization Specialist with HUD in

Louisville. The job posting required candidates to have “[k]nowledge and/or experience in public

housing, Section 8 programs, or related community development or local housing programs.”2


       1
         This court reviews the district court decision to grant summary judgment de novo.
Rowley v. United States, 76 F.3d 796, 799 (6th Cir. 1999). Summary judgment is appropriate if
“there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c).

        2
            The posting read:

        KNOWLEDGES [sic], SKILLS AND ABILITIES REQUIRED

        Quality Ranking Factors: Applicants MUST provide separate narrative statements
        describing how their experience satisfies each Quality Ranking Factor
        (QRF)/Knowledge, Skill and Ability (KSA). Provide specific examples of your
        qualifications and significant accomplishments.

        1. Ability to direct and manage a staff (Critical Factor)

        2. Ability to establish objectives and performance goals, monitor progress toward
        their achievement and set priorities based on changing requirements.


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No. 05-6938
Toledo v. Jackson

       An offsite, three-person panel reviewed the applications that Toledo, Stephen Schneller, and

other applicants submitted and concluded that Toledo, Schneller, and a small group of applicants

satisfied the minimum qualifications for the position. At that point, Art Wasson, the Director of the

Office of Public Housing, and Don Clem independently reviewed the applications and interviewed

candidates. Wasson and Clem agreed to hire Schneller, who exhibited positive qualities and

interviewed better than Toledo.


       On February 20, 2004, Toledo alleged in a four-page complaint that HUD violated the Age

Discrimination in Employment Act, 29 U.S.C. § 633(a), and Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., when it hired “an individual less qualified than [Toledo] and not

of the same protected class as [Toledo] based on age and national origin.” On July 1, 2005, HUD

moved for summary judgment, which the U.S. District Court for the Western District of Kentucky

granted on November 14, 2005. For his ADEA and Title VII claims to survive summary judgment,

Toledo must show that there exists a material issue of fact as to whether (1) HUD’s proffered reason

had no basis in fact, (2) the proffered reason did not actually motivate HUD, or (3) the proffered

reason was insufficient to motivate the decision to hire Schneller over Toledo. See BTR Automotive



       3. Ability to communicate effectively and perform representational functions both
       orally and in writing with HUD clients, local government officials, citizen groups
       and/or the public on programmatic and technical issues.

       4. Knowledge and/or experience in public housing, Section 8 programs, or related
       community development or local housing programs.

(JA 76-77.)

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No. 05-6938
Toledo v. Jackson

Sealing Sys., Inc., 339 F.3d at 516.


       Because Toledo concedes that he has no direct evidence of discriminatory intent, he instead

argues, first, that the language of the vacancy announcement demonstrates that Schneller was not

qualified, and, second, that Schneller did not, in fact, interview better than Toledo and did not have

as good of an academic background as Toledo.

       The terms of the vacancy announcement do not support Toledo’s claim. Toledo cites the

posting’s requirement that applicants have “[k]nowledge and/or experience in public housing,

Section 8 programs, or related community development or local housing programs” and argues that

Schneller lacked knowledge of or experience in “public housing” and “Section 8 programs.”3

Toledo’s reading of the vacancy announcement is flawed, as he implicitly recognized during his

deposition. Public housing and Section 8 experience is not a necessary pre-requisite for the job since

a qualified applicant can have knowledge or experience in “related community development or local

housing programs” instead. Indeed, Schneller had such skills. At the time of his application for the

position, Schneller was an Operations Specialist-Community Builder for HUD. From 1996 to June

2000, he was the Housing Development Manager for Volunteers of America of Kentucky and

Tennessee, Inc., and from June 1993 to October 1996, he served as the Executive Director of

Community Health Trust, Inc. For this reason, there is no material issue of disputed fact whether

       3
         An undated “Memorandum for Record” from Loretta L. Bonds, “Contract Investigator,
JDG Associates, Inc.” notes that Bonds could not “get an answer [from HUD] as to how the
selectee was rated qualified as he had no experience in the major duties as listed in the vacancy
announcement.” (JA 120.) Contrary to Toledo’s description, Bonds merely purports to ask HUD
about Schneller’s qualifications; she does not make any conclusions about them.

                                                -4-
No. 05-6938
Toledo v. Jackson

HUD’s proffered decision was pretextual.

       Also unavailing is Toledo’s second argument that he interviewed as well as Schneller and

that his academic background is stronger. It may very well be that Toledo is more qualified than

Schneller and that HUD incorrectly thought otherwise. Such a fact, however, is irrelevant. The

ADEA and Title VII prohibit employers from discriminating against applicants on the basis of

protected characteristics; these laws do not require employers to hire the best applicants. See Stein

v. Nat’l City Bank, 942 F.2d 1062, 1065 (6th Cir. 1991); Wrenn v. Gould, 808 F.2d 493, 502 (6th

Cir. 1987). Toledo’s presentation of his own qualifications and his mere conclusory allegations as

to pretext are insufficient to withstand a motion for summary judgment. McDonald v. Union Camp

Corp., 898 F.2d 1155, 1162 (6th Cir. 1990); BTR Automotive Sealing Sys., Inc., 339 F.3d at 516;

Brownlow v. Edgecomb Metals Co., 867 F.2d 960, 964 (6th Cir. 1989).4

       For the foregoing reasons, the district court judgment is AFFIRMED.




       4
        Toledo failed to present any evidence that his interviewing skills and academic
credentials were so far superior to those of Schneller that the disparity in abilities alone could
warrant a jury finding that HUD’s reasons for hiring Schneller were pretext.

                                                 -5-
