                                  ___________

                                  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,1 which
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.




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




                                        -2-
     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




                                      -3-
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




                                    -4-
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.2   The government argued that Peanick's graduation and
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.




         2
      As a result of the long and complicated procedural history
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-
        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.




                                            -6-
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.3   As noted above, after finding that this claim was timely filed,
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




         3
       Peanick's other claim of gender discrimination, denial of
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-
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




                                               -8-
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




                                             -9-
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 cross-
appealed 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




     4
      Peanick also argues that the District Court erred in failing
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-
                                    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. § 2000e-
5(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.




                                    -11-
