The Honorable William S. Bahn, United States Magistrate Judge 1

for the Eastern District of Missouri, to whom the case was referred

for final disposition by consent of the parties pursuant to 28

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.

William Peanick, Jr., a Native American, brought this Title VII

employment-discrimination action against federal officials after he twice

failed to graduate from the United States Marshals Service training

academy. Peanick appeals from the judgment of the District Court, which 1

largely denied his claims for relief. We affirm the judgment of the

District Court, although 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 States

Marshal and was provisionally accepted. He was sent to the marshal academy

in Glynco, Georgia, for a mandatory two-part training course in February

1985. Peanick passed the first phase of his training, an eight-week

criminal investigator school, which largely consisted of classroom

instruction. Peanick failed the second phase of the training course, a

five-week physical endurance program, when he injured his knee while

running. He was told that he could return to the academy and take the

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 physical

training course. As a part of basic training, all recruits must score

above a certain percentile ranking for their age and gender on a physical

fitness test known as the Physical Efficiency Battery (PEB). The PEB

consists of five components: push-ups, sit-ups, flexibility, body-fat

analysis, and a 1.5 mile run. Peanick, even after repeated attempts, was

unable to complete the 1.5 mile run in the time allotted for men in his age

group. Ordinarily, any recruit who fails the physical training program

twice is removed from the deputy marshal position. Accordingly, on October

24, 1985, the Marshals Service wrote a letter to Peanick proposing his

removal. Peanick responded to the letter by pointing out that he had

suffered an injury that prevented him from meeting the PEB requirements.

As a result of his response, 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 of a deputy marshal and primarily involve judicial and prisoner

security. 
-3-

On January 21, 1986, the Marshals Service issued a Decision on

Proposed Removal, officially informing Peanick that he would be reassigned

from a deputy marshal position to that of a "Detention/Officer Guard" with

a retroactive effective date of January 9, 1986. Supp. Joint App. at 27.

The decision explained that Peanick would remain a detention officer until

he was "able to meet all of the fitness standards for a Deputy U.S. Marshal

position," at which time he could "request reassignment to [his] former

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

accelerated promotion program." Id. Finally, the letter also informed

Peanick that he could file a grievance if he was not satisfied with the

decision: "If you believe that this action is being taken because of your

race, color, religion, sex, national origin, age, marital status, or

political activity not required by law, you may request a review of this

action through the Department of Justice Complaint System." Id. at 28. The

letter explained that to file a discrimination claim, Peanick should

contact the Equal Employment Opportunity (EEO) officer for the Marshals

Service. Peanick made no attempt to file a claim with the EEO officer at

that time. 

Less than a month later, on February 10, 1986, Peanick appealed his

reassignment to the Merit Systems Protection Board, alleging that the

reassignment was based on handicap discrimination. No mention of race or

gender discrimination was made at this time. The Board dismissed the

appeal on the grounds that it lacked jurisdiction over reassignments. On

February 25, 1988--more than two years after the decision to reassign him

as a detention officer was made--Peanick sent a letter to a personnel

officer, requesting explanations for the first time about alleged race and

gender discrimination in connection with the administration of the PEB test

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-

alleged discrimination on the basis of race and gender. The Associate

Director for Administration of the Marshals Service responded to Peanick's

letters. The associate director explained that Peanick's allegations of

race and gender discrimination were untimely since 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 director also told Peanick that "if you are able to achieve

the minimum physical standards required for a Deputy U.S. Marshal and

provide medical documentation to verify your fitness, the agency will

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 for 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 be

resolved informally and that Peanick could file a formal complaint of

discrimination with the Department of Justice. Peanick filed his complaint

on June 30, 1988, alleging, inter alia, that his failure to graduate from

the academy and his subsequent reassignment to detention officer were

because of race and gender discrimination. The EEO officer recommended

that the Department of Justice reject Peanick's complaint because most of

his claims were time-barred since Peanick did not contact an EEO officer

within the prescribed thirty-day time limit and his remaining claims were

without merit. On June 27, 1989, the Department of Justice, following the

recommendation of the EEO officer, issued an administrative decision

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 result of race and gender discrimination (graduation and

reassignment claims). He
 As a result of the long and complicated procedural history

2

surrounding this case, the government neglected to file an answer

before trial. Neither party apparently noticed the lack of an

answer and, after trial, the government, having discovered its

omission, submitted a motion to file its answer out of time. The

District Court granted the motion.

-5-

contended that while he was not able to graduate from the academy and

become a deputy marshal because he failed the 1.5 mile run, other recruits

from different racial backgrounds with similar orthopedic injuries were

allowed to graduate after substituting alternative forms of testing for the

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 subjected to harsher discipline because of his Native American

heritage. Peanick alleged that he has been discriminated against on the

basis of his gender while training at the academy because women recruits

were given a longer time period to complete the mandatory 1.5 mile run.

Second, Peanick claimed he was subject to further gender discrimination

when the Marshals Service refused to grant him time to participate in the

FIT program, which gives federal employees access to exercise equipment and

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

benefits, as well as an order mandating his participation in the FIT

program.

In lieu of an answer, the government filed a motion to dismiss and

for summary judgment. The government argued that Peanick's graduation and 2

reassignment claims were untimely since Peanick did not contact an EEO

officer within the thirty-day regulatory deadline. 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 memorandum

order on April 18, 1994. The court first determined that the graduation

and reassignment claims were timely filed. The court reasoned that

Peanick's failure to graduate from the academy and his subsequent

reassignment to detention officer status amounted 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 sought

immediate "clarification and correction" of what he believed to be

discriminatory treatment; and (3) additional discriminatory incidents

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). Even though the court deemed the action timely, it rejected on the

merits Peanick's theory of race and gender discrimination as it relates to

his graduation and reassignment claims. With respect to Peanick's FIT

program claim, the court found that the Marshals Service had discriminated

against Peanick by denying him access to the program. The court noted that

while the program was available to mostly female administrative staff,

Peanick "was often denied the right to participate" even though his

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

subsequent memorandum order, the court awarded Peanick $500 in attorney

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

determination 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 his

subsequent reassignment as a detention officer. He also insists that the

court erred in failing to order that he be reinstated as a deputy marshal

with full back pay and benefits. 
 Peanick's other claim of gender discrimination, denial of

3

access to the FIT program, is entirely unrelated to his allegation

that the PEB standards discriminate against men. The government

has not cross-appealed the District Court's finding that Peanick

was discriminated against with respect to the FIT program nor has

Peanick appealed as insufficient his $100 award for this violation.

The FIT program claim is thus not before us. 

-7-

Finally, Peanick challenges the court's decision to award $500 in attorney

fees as insufficient.

II.

We first address Peanick's claim of gender discrimination as it

relates to his failure to graduate from the academy and his subsequent

reassignment as a detention officer. Peanick maintains that the Marshals

Service discriminated against him because the PEB standards required male

recruits to complete the 1.5 mile run in a shorter time period than female

recruits. As noted above, after finding that this claim was timely filed, 3

the District Court nevertheless went on to reject it on the merits. We

review a district court's legal conclusions de novo and its factual

findings for clear error. Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996).

We conclude that the District Court was correct to reject this claim,

although, unlike the District Court, we reject it on timeliness grounds and

do not reach the merits of the claim. This Court 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. 2549

(1996). 

A federal government employee alleging discrimination under Title VII

of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17 (1988 & Supp. V

1993), must bring purported discriminatory acts to the attention of the

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 dismissal

of the
-8-

claim. McAlister v. Secretary of Health and Human Servs., 900 F.2d 157,

158 (8th Cir. 1990). The limitations period begins to run "the date on

which the adverse employment action is communicated to the plaintiff."

Dring v. McDonnell 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 male recruits than to female

recruits and reassigned him as a detention officer. The PEB standards were

applied to Peanick when he attended basic training at the academy in

February 1985 and again in September 1985. On January 21, 1986, the

Marshals Service notified Peanick of his reassignment to detention officer.

Consequently, the latest the thirty-day limitations period began to run was

January 21, 1986--the date on which Peanick was told of the adverse

employment action. Peanick, however, waited more than two years before

contacting an EEO officer about these alleged acts of gender

discrimination, far beyond the thirty-day time limit. Because Peanick

failed to make a timely complaint, the gender discrimination claim

regarding his failure to graduate and his subsequent reassignment to

detention officer is barred. See McAlister, 900 F.2d at 158. We thus

affirm the District Court with respect to this claim of gender

discrimination--even though the court erred in concluding that the claim

was timely filed as a continuing violation--because we reach the same

result by a different method.

The District Court gave three reasons for why it found the actions

of the Marshals Service to be continuing violations of Title VII. See

supra p. 6. None of these reasons, however, provides a legitimate basis

for finding a continuing violation of the gender discrimination claim as

it relates to Peanick's failure to graduate from the academy and his

subsequent reassignment to detention officer. First, the court determined

that Peanick's action was timely because the Marshals 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-

decision to reassign Peanick to detention officer "was not necessarily

permanent and final, and that the Marshal Service wanted to work with

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 PEB

standards does not undermine the finality of the initial decision to

reassign him as a detention officer. An unambiguous decision to reassign

him was made on January 21, 1986, and that is when the limitations period

began to run. See Dring, 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 file

in timely fashion is the consequence either of a deliberate design by the

employer or of actions that the employer should unmistakably have

understood would cause the employee to delay filing his charge."

Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358-59 (8th Cir.)

(quoting Price v. Litton 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 warrant 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 plaintiff did not toll limitations period); Lawson v. Burlington

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).

Second, the court held that the action was timely because Peanick

"immediately began seeking clarification and correction of what he

perceived to be discriminatory treatment" by filing an appeal with the

Merit Systems Protection Board. Peanick I at 12. Such a determination

undercuts, rather than supports, a finding that the claim was timely. If

in fact Peanick believed at the
 Peanick also argues that the District Court erred in failing 4

to order as remedial relief his reinstatement to deputy marshal

with full back pay and benefits. This argument "puts the cart

before the horse" because it assumes that Peanick has already won

on this count. We need not and do not address this argument since

Peanick was not entitled to prevail on his claim of gender

discrimination in the first place. 

-10-

outset that he had been discriminated against, he had no excuse for failing

to contact an EEO officer within the thirty-day period instead of waiting

more than two years.

Third, the court concluded that the action was timely because the

subsequent discriminatory incidents Peanick suffered "are a continuation

of his classification as a detention officer." Id. The District Court

never specified what those subsequent discriminatory incidents were that

resulted from Peanick's reassignment as a detention officer. Presumably,

the subsequent discriminatory incidents referred to Peanick's allegedly

being denied promotional opportunities, achievement awards, training,

uniforms, and overtime pay. Those incidents, however, stem from Peanick's

claim of race discrimination and in no way relate to his claim of gender

discrimination. See Complaint at ¶ 7E. Peanick did not appeal the

District Court's rejection of his race discrimination claim and thus that

claim is not before us. We hold that the alleged 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 argument is unconvincing. We

are free to affirm on this ground even though the government has not crossappealed it. See Auman v. United States, 67 F.3d 157, 161-62 (8th Cir.

1995) ("We review judgments, as opposed to opinions, 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 prevailing plaintiff in a Title VII action is entitled

to recover costs, including 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 discretion. 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 court

rejected the very heart of his case: the claims of racial discrimination

as well as the claim of gender discrimination as it relates to the PEB

standards and reassignment to detention officer status. The only success

Peanick enjoyed was with respect to his claim of gender discrimination in

the FIT program, "a minor issue which received little attention" and

resulted in a meager $100 award of damages. Peanick II at 12. The "most

critical factor" in awarding attorney fees "is the degree of success

obtained." Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). Given

Peanick's very limited success, it was not an abuse of discretion to award

only $500 in attorney fees.

IV.

For the foregoing reasons, the judgment of the District Court is

affirmed.

A true copy.

Attest:

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