### The Honorable William S. Bahn, United Sta tes Magistrate Judge 1 

### for the Eastern District of Missouri, to whom the case was r eferred for final disposition by consent of the parties pursuant to 2 8 U.S.C. § 636(c)(1) (1988). ___________ No. 95-2594

___________ William Peanick, Jr., * * Appellant, * * v. * Appeal from the United States * District Court for the Stanley Morris, Director of * Eastern District of Missouri. United States Marshals Service; * William S. Vaughn, United * States Marshal, * * Appellees. *

___________ Submitted: March 19, 1996 Filed: September 19, 1996

___________ Before McMILLIAN, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

___________ BOWMAN, Circuit Judge.

WilliamPeanick, Jr., a Native American, brought this Title VI I employment-discrimina tion action against federal officials after he twice failed to graduate from the United States Marshals Service trainin g academy. Peanick appeals from the judgment of the District Court, which 1 largel ydenied his claims for relief. We affirm the judgment of th e District Court, altho ugh our rationale differs from the reasons stated in the District Court's order.

### -2- I.

In 1984 Peanick was employed by the Federal Protective Service

. Sometime during that year, Peanick applied to become a Deputy United State s Marshal and was provisionally accepted. He was sent to the marshal academ y in Glynco, Georgia, for a mandatory two-part training course in February 1985

. Peanick passed the first phase of his training, an eight-wee k criminal investigator school, which largely consisted of classroo m instruction. Peanick failed the second phase of the training course, a five-w eek physical endurance program, when he injured his knee whil e
runn ing. He was told that he could return to the academy and take th e physical fitness program again when his injury had healed completely.

On August 23, 1985, after receiving a clean bill of health from his physician, Peanick returned to the academy to repeat the five-week physica l training course. As a part of basic training, all recruits must scor e above a certain perce ntile ranking for their age and gender on a physical fitness te st known as the Physical Efficiency Battery (PEB). The PE B
cons ists of five components: push-ups, sit-ups, flexibility, body-fa t analysis, and a 1.5 m ile run. Peanick, even after repeated attempts, was unable to complete the 1.5 mile run in the time allotted for men in his ag e gro up. Ordinarily, any recruit who fails the physical training progra m twice is removed from the deputy marshal position. Accordingly, on Octobe r 24, 1 985, the Marshals Service wrote a letter to Peanick proposing hi s
rem oval. Peanick responded to the letter by pointing out that he ha d suffered an injury that prevented him from meeting the PEB requirements. As a result of his re sponse, the Marshals Service determined that instead of removal from the service, Peanick would be reassigned to the position of detention officer. A detention officer's duties are more limited than those o f a deputy marshal and primarily involve judicial and prisone r security.

### -3- On Jan uary 21, 1986, the Marshals Service issued a Decision o n Proposed Removal, officially informing Peanick t hat he would be reassigned from a deputy marshal position to that of a "Det ention/Officer Guard" with a retroactive effecti ve date of January 9, 1986. Supp. Joint App. at 27. The decision explained that Peanick would remaina detention officer until he was "able to meet all of the fitness standards for a Deputy U.S. Marsha l pos ition," at which time he could "request reassignment to [his] forme r status." Id. Assuming a favorable disposition of such a request, Peanick could "be reassigned to a Deputy U.S. Marshal position and placed in the

acc elerated promotion program." Id. Finally, the letter also informe d Peanick that he could file a grievance if he was not satisfied with th e decision: "If you believe that this action is b eing taken because of your race, color, religion, sex, national origin, age, marital status, o r political activity not required by law, you may request a review of this action through the Department of Justice Complaint System." Id. at 28. Th e letter explained that to file a discrimination claim, Peanick shoul d contac t the Equal Employment Opportunity (EEO) officer for the Marshal s Service. Peanick mad e no attempt to file a claim with the EEO officer at that time.

Less thana month later, on February 10, 1986, Peanick appealed his reassi gnment to the Merit Systems Protection Board, alleging that th e reassignment was base d on handicap discrimination. No mention of race or gender dis crimination was made at this time. The Board dismissed th e appeal on the grounds that it lacked jurisdiction over reassignments. On February 25, 1988--mo re than two years after the decision to reassign him
as a deten tion officer was made--Peanick sent a letter to a personne l officer, requesting explanations for the first t ime about alleged race and gender discrimination in connection with the administration of the PEB tes t and his subsequent reassignment to detention officer. Peanick also sent
a letter to the Director of the Marshals Service around the same time , complaining about

### -4-

alleg ed discrimination on the basis of race and gender. The Associat e Director for Administration of the Marshals Serv ice responded to Peanick's letters. The associate director explained that Peanick's allegations of race and gender discrimination were untimely sin ce Peanick failed to lodge
a complaint within thirty days of the alleged discriminatory incident as required by federal regulations. See 29 C.F.R. § 1613.214(a)(1)(i) (1985)

. The associate directo r also told Peanick that "if you are able to achieve the min imum physical standards required for a Deputy U.S. Marshal an d provid e medical documentation to verify your fitness, the agency wil l consider sending you to the Training Academy to complete basic training." Supp. Joint App. at 8.
Peanick's charges eventually were referred to the EEO officer f or the Marshals Service, who made initial contact with Peanick in May 1988. The EEO officer informed Peanick in June 1988 that the matter could not b e resolve d informally and that Peanick could file a formal complaint o f discrimination with the Department of Justice. Peanick filed his complain t on June 30, 1988, all eging, inter alia , that his failure to graduate from the ac ademy and his subsequent reassignment to detention officer wer e bec ause of race and gender discrimination. The EEO officer recommende d that the Department o f Justice reject Peanick's complaint because most of his claims were time-barred since Peanick did not contact an EEO officer within the prescribedthirty-day time limit and his remaining claims were without merit. On June 27, 1989, the Department of Justice, following the
re commendationof the EEO officer, issued an administrative decisio n denying Peanick's claims.

Peanick filed this action in federal court on May 23, 1989, alleging two theories of discrimination. First, Peanick claimed that his failure to graduate from the academy and his subsequent reassignment to detention officer were the resu lt of race and gender discrimination (graduation and reassignment claims). He

### As a result of the long and complicated procedural histor y 2 

### surrounding this case, the government neglected to file an answer before trial. Neither party apparently noticed the lack of a n an swer and, after trial, the government, having discovered it s omission, submitted a motion to file its answer out of time. The District Court granted the motion.
-5- con tended that while he was not able to graduate from the academy an d become a deputy marshal because he failed the 1. 5 mile run, other recruits from different racial backgrounds with similar orthopedic injuries wer e allowed to graduate after substituting alternative forms of testing for th e 1.5 mile run. Peanick also insisted that he has been denied promotions, achievement awards, equipment and uniforms, and overtime pay, and he has been s ubjected to harsher discipline because of his Native America n heritage. Peanick alleged that he has been discriminated against on the basis of his gender while training at the academy because women recruits
were give n a longer time period to complete the mandatory 1.5 mile run

. Second , Peanick claimed he was subject to further gender discriminatio n when the Marshals Ser vice refused to grant him time to participate in the FIT program, which gives federal employees access to exercise equipment an d affords a limited amount of work time for exercise (FIT program claim)

. Based on these two theories of alleged discrimination, Peanick sought an order reinstating him to the position of deputy marshal with back pay and bene fits, as well as an order mandating his participation in the FI T program.

In lie u of an answer, the government filed a motion to dismiss an d for summary judgment. The government argued that Peanick's gr aduation and 2 reassignment claims were untimely since Peanick did not contact an EE O officer within the thirty-day regulatory deadlin e. The government did not argue that the FIT program claim was untimely. The court ordered that the timeliness issue would be taken together with the case and decided after trial.

### -6- After a two-day bench trial, the court issued its first memorandu m order on April 18, 1994. The court first determined that the graduation and reassignment claims were timely filed. The court reasoned tha t Peanic k's failure to graduate from the academy and his subsequen t reassignment to detention officer status amounte d to continuing violations because (1 ) the Marshals Service told Peanick he could still become a deputy marshal if he satisfied the fitness requirements; (2) Peanick sough t immedi ate "clarification and correction" of what he believed to b e dis criminatorytreatment; and (3) additional discriminatory incident s stemmed from Peanick' s classification as a detention officer. Peanick v. Morris , No. 4:89CV981, slip op. at 12 (E.D. Mo. April 18, 1994) ( Peanick I ). Ev en though the court deemed the action timely, it rejected on th e merits Peanick's theory of race and gender discr imination as it relates to his graduation and reassignment claims. With respect to Peanick's FI T program claim, the court found that the Marshals Service had discriminated against Peanick by denying him access to the program. The court noted tha t while the program was available to mostly female administrative staff , Peanick "was often denied the right to participate" even though hi s detention officer status meant that he was an administrative employee. Id

. at 18. The court concluded that the denial of access to the FIT program
was based on Peanick's gender and awarded him $100 in damages. In a subseq uent memorandum order, the court awarded Peanick $500 in attorne y fees. Peanick v. Morris , No. 4:89CV981, slip op. at 14 (E.D. Mo. April 19 , 1995) ( Peanick II ).

On appeal, Peanick does not challenge the District Court' s determ ination that he did not suffer from any racial discrimination

. Instead, Peanick appeals the court's holding of no gender discrimination
as it relates to his failure to graduate from the academy and hi s subsequent reassignme nt as a detention officer. He also insists that the court erred in failin g to order that he be reinstated as a deputy marshal with full back pay and benefits.

### Peanick's other claim of gender discrimination, denial o f 3 

### access to the FIT program, is entirely unrelated to his allegation tha t the PEB standards discriminate against men. The governmen t has no t cross-appealed the District Court's finding that Peanic k was discriminated against with respect to the FIT program nor has Peanick appealed as insufficient his $100 award for this vio lation. The FIT program claim is thus not before us.
-7- Finally, Peanick challenges the court's decisionto award $500 in attorney fees as insufficient.

II.

We first address Peanick's claim of gender discrimination as i t relat es to his failure to graduate from the academy and his subsequen t reassignment as a det ention officer. Peanick maintains that the Marshals Service discriminatedagainst him because the PEB standards required male recruits to complete the 1.5 mile run in a short er time period than female recruits. As noted above, after finding that this claim was t imely filed,

3 the Dis trict Court nevertheless went on to reject it on the merits. W e review a district court's legal conclusions de novo and its factua l findings for clear er ror. Long v. Nix , 86 F.3d 761, 765 (8th Cir. 1996). We conclud e that the District Court was correct to reject this claim , although, unlike the District Court, we reject it on timeliness grounds an d do not reach the merits of the claim. This Cour t may "affirm the district court's judgment on any grounds supported by the record." United States

v. Lohman , 74 F.3d 863, 866 (8th Cir.), cert. denied , 116 S. Ct. 254 9 (1996).
A federal government employee alleging discrimination under Tit le VII of th e Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17 (1988 & Supp. V 199 3), must bring purported discriminatory acts to the attention of th e federal agency's EEO officer within thirty days of the alleged incident. 29 C.F.R. § 1613.214(a)(1)(i) (1985). The thirty-day deadline functions

as a statute of limitations and failure to meet it will result in dismissa l of the

### -8-

claim. McAlister v. Secretary of Health and Human Servs. , 900 F.2d 157, 158 (8t h Cir. 1990). The limitations period begins to run "the date o n which the adverse employment action is communicated to the plaintiff. " Dring v. M cDonnell Douglas Corp. , 58 F.3d 1323, 1328 (8th Cir. 1995)

. Peanick claims that the Marshals Service committed gender discrimination when it applied different PEB requirements to ma le recruits than to female recruits and reassigned him as a detention officer. The PEB standards wer e appl ied to Peanick when he attended basic training at the academy i n Februa ry1985 and again in September 1985. On January 21, 1986, th e Marshals Service notified Peanick of his reassignment to detention officer

. Consequently, the latest the thirty-day limitations period began to run wa s January 2 1, 1986--the date on which Peanick was told of the advers e emp loyment action. Peanick, however, waited more than two years befor e contac ting an EEO officer about these alleged acts of gende r discri mination, far beyond the thirty-day time limit. Because Peanic k failed to make a timely complaint, the gender discrimination clai m regard ing his failure to graduate and his subsequent reassignment t o detentio n officer is barred. See McAlister , 900 F.2d at 158. We thu s affirmthe District Court with respect to this claim of gende r discrimination--eventhough the court erred in concluding that the claim
was tim ely filed as a continuing violation--because we reach the sam e result by a different method.

The Dis trict Court gave three reasons for why it found the action s of the Marshals Service to be continuing violations of Title VII. Se e supra p. 6. None of these reasons, however, provides a legitimate basis for finding a continuing violation of the gender discrimination claim as it r elates to Peanick's failure to graduate from the academy and hi s subsequent reassignment to detention officer. F irst, the court determined that Peanick's action was timely because the Mar shals Service told Peanick that he could still become a deputy marshal if he successfully completed PEB testing, which, according to the District Court, meant that the

### -9-

decisi on to reassign Peanick to detention officer "was not necessaril y permanent and final, and that the Marshal Service wanted to work wit h plaintiff to improve his situation." Peanick I at 12. A mere promise to allow Peanick to reenter the deputy marshal program if he satisfied the PE B stan dards does not undermine the finality of the initial decision t o reassign him as a det ention officer. An unambiguous decision to reassign him was made on Janua ry 21, 1986, and that is when the limitations period began to run. See Dr ing , 58 F.3d at 1328. Peanick also cannot resort to
some sort of equitable estoppel theory, arguing that the promise that he might be rehired as a deputy marshal induced him to sleep on his rights. Equitable estoppel is appropriate only when "the employee's failure to fil e in timely fashion is the consequence either of a deliberate design by the employ er or of actions that the employer should unmistakably hav e unders tood would cause the employee to delay filing his charge. " Kriege smann v. Barry-Wehmiller Co. , 739 F.2d 357, 358-59 (8th Cir. ) (quoting Price v. Lit ton Business Sys., Inc. , 694 F.2d 963, 965 (4th Cir. 1982)), cert. denied , 469 U.S. 1036 (1984). A contingent promise by the Marshals Service that Peanick might someday become a deputy marshal if he passed the PEB test, without more, does not warr ant an equitable estoppel. Wilson v. Westinghouse Elec. Corp. , 838 F.2d 286, 288 (8th Cir. 1988 ) (holding that attempts by supervisors to locate new position within company for pl aintiff did not toll limitations period); Lawson v. Burlingto n Indus., Inc. , 683 F.2d 862, 864 (4th Cir.) (holding that employee' s expectation that he might be rehired did not toll limitations period) , cert. denied , 459 U.S. 944 (1982).

Secon d, the court held that the action was timely because Peanic k "immediatelybegan seeking clarification and correction of what h e perceived to be discriminatory treatment" by filing an appeal with th e Merit Sys tems Protection Board. Peanick I at 12. Such a determinatio n undercuts, rather tha n supports, a finding that the claim was timely. If in fact Peanick believed at the

### Peanick als o argues that the District Court erred in failing 4 

### to ord er as remedial relief his reinstatement to deputy marsha l wi thfull back pay and benefits. This argument "puts the car t before the horse" because it assumes that Peanick has already won on this count. We need not an d do not address this argument since Peanick was not entitled to prevail on his claim of gende r discrimination in the first place.
-10- outset that he had been discriminated against, he had no excuse for failin g to contact an EEO off icer within the thirty-day period instead of waiting more than two years.

Third , the court concluded that the action was timely because th e subsequent discriminatory incidents Peanick suffered "are a continuation of his cl assification as a detention officer." Id. The District Cour t
never specified what those subsequent discriminatory incidents were that resulted from Peanick 's reassignment as a detention officer. Presumably, the s ubsequent discriminatory incidents referred to Peanick's allegedl y bei ng denied promotional opportunities, achievement awards, training , uniforms, and overtime pay. Those incidents, ho wever, stem from Peanick's claimof race discrimination and in no way relate to his claim of gender discrimin ation. See Complaint at ¶ 7E. Peanick did not appeal th e District Court's reje ction of his race discrimination claim and thus that claim is not before us. We hold that the allege d discriminatory incidents in question do not support Peanick's continuing-violation theory.

In a last -ditch attempt to save his action, Peanick argues, in his reply brief, that the government has waived the timeliness defense because it did not cross-appeal on this issue. This arg ument is unconvincing. We
are free to affirm on this ground even though the government has not cross

appeale d it. See Auman v. United States , 67 F.3d 157, 161-62 (8th Cir

. 1995) ("We review judgments, as opposed to opini ons, and may affirm on any ground supported by the record, regardless of whether counsel urged that ground or the district court considered it."). 4

### -11- III.

Peanick's challenge to the $500 attorney fees award as insufficient must also fail. A pr evailing plaintiff in a Title VII action is entitled to recover costs, inc luding reasonable attorney fees. 42 U.S.C. § 2000e5(k) (Supp. V 1993). We review a district court's award of attorney fees for an abuse of discr etion. Parton v. GTE North, Inc. , 971 F.2d 150, 156 (8th Cir. 1992). The relatively small award in this case simply reflects the fact that Peanick's case was largely unsuccessful. The trial cour t rejected the very hea rt of his case: the claims of racial discrimination

as well as the claim of gender discrimination as it relates to the PE B standards and reassig nment to detention officer status. The only success Peanick enjoyed was w ith respect to his claim of gender discrimination in the FIT program, "a minor issue which received little attention" an d resulted in a meager $100 award of damages. Peanick II at 12. The "most crit ical factor" in awarding attorney fees "is the degree of succes s obt ained." Hensley v. Eckerhart , 461 U.S. 424, 436 (1983). Give n Peanick's very limited success, it was not an ab use of discretion to award only $500 in attorney fees.

IV.

Fo r the foregoing reasons, the judgment of the District Court i s affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.