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

                                                                            FILED
                                                                        September 15, 2008

                                     No. 07-11282                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


KAN PLASAI

                                                  Plaintiff-Appellant
v.

SECRETARY MARY E. PETERS

                                                  Defendant-Appellee



                   Appeal from the United States District court
                        for the Northern District of Texas
                             USDC No. 3:03-CV-2996


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Kan Plasai appeals the dismissal, with prejudice, following a bench trial
before a magistrate judge, of her Title VII failure-to-promote claim against the
Secretary of the Department of Transportation.
       Plasai is a Thai national who worked as a computer specialist in the
Dallas Flight Standards District Office (FSDO) of the Federal Aviation
Administration from 1998 until her removal in September 2005. She was


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-11282

originally employed as a LAN Administrator at the FG-9 compensation level;
but, on 8 April 2001, she received a temporary promotion to be a LAN
Administrator at the FG-11 compensation level. Plasai was also allowed to
compete for a permanent position at that pay level. No one was selected,
however, for that permanent position; and Plasai’s temporary promotion expired
by its terms on 5 October 2001.
      Although Plasai raised numerous discrimination claims, she appeals only
the dismissal of her failure-to-promote claim. Plaintiff alleged, inter alia, that
she was discriminated against on the basis of her race, color, national origin, and
gender when she was not promoted to the permanent FG-11 position. At the
conclusion of the bench trial, the district court, from the bench, orally made
extensive findings of fact and conclusions of law.
       The district court dismissed the failure-to-promote claim on both
procedural and substantive grounds. Procedurally, the court ruled that Plasai
had not exhausted her administrative remedies because she had not initiated
contact with an EEO counselor within 45 days of the adverse personnel action,
as required by 29 C.F.R. § 1614.105(a). Alternatively, the court ruled that Plasai
had not rebutted the legitimate, nondiscriminatory reasons for not promoting
Plasai that were offered by the defendant and therefore could not meet her
burden of proving discrimination.
      Because our court has not conclusively established that the exhaustion
requirement under Title VII is jurisdictional, we need not decide the close and
difficult issue of whether Plasai contacted an EEO counselor within the required
time period. See Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 2006)
(explaining disagreement about whether exhaustion is merely a prerequisite to
suit or whether it implicates subject matter jurisdiction). Instead, we will
consider whether the district court erred in finding Plasai did not prove
discrimination.

                                        2
                                  No. 07-11282

      The parties make much of the familiar McDonnell Douglas burden-shifting
framework used for determining whether a plaintiff’s discrimination claim may
survive a motion for summary judgment. This case, however, was fully tried.
“On appellate review of a fully tried case, we do not concern ourselves with the
shifting burdens of proof that are relevant at trial. Rather, we limit our review
to the district court’s findings on the ultimate question of discrimination . . . .”
Collins v. Baptist Mem’l Geriatric Ctr., 937 F.2d 190, 192-93 (5th Cir. 1991)
(citation and internal quotation marks omitted).            Along that line, the
determination of discrimination vel non is a finding of fact, which we review only
for clear error. Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
      The district court found: (1) Plasai did not get along well with other
employees; (2) an audit revealed deficiencies regarding backup tapes she was
required to keep; and (3) she worked overtime without approval and encouraged
others to do the same.       Moreover, at trial, Plasai did not claim these
nondiscriminatory bases for not promoting her were false. Rather, Plasai merely
offered testimony that some unnamed employees made racially derogatory
remarks toward her and that she was the only Asian LAN Administrator in the
Dallas FSDO. Based on the foregoing, the district court did not clearly err in
finding Plasai did not prove discrimination by a preponderance of the evidence.
      AFFIRMED.




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