* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11282

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-11282

2

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

difficultissue 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.
No. 07-11282

3

The parties make much ofthe 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.