Peanick Brief

FRANK W. HUNGER
Assistant Attorney General

MARLEIGH D. DOVER
(202) 514-3511

MATTHEW M. COLLETTE
(202) 514-4214 Attorneys, Appellate Staff
Civil Division, Room 3127
Department of Justice
Washington, D.C. 20530-0001

All applicants for a position as a Deputy U.S. Marshal must meet minimum physical fitness requirements, including a 1.5 mile run. Due to physiological differences in aerobic capacity that vary with age and gender, this test has been developed as a relative rather than an absolute standard. Thus, while men must complete the 1.5 mile run in a faster absolute time than women of the same age, the measure of aerobic capacity remains the same -- each candidate must perform at the same level of aerobic capacity.

Plaintiff failed to meet the physical fitness requirements established by the Marshals Service for his age and gender. As a result, the Marshals Service assigned plaintiff as a "Detention Officer" rather than as a Deputy U.S. Marshal. More than two after this reassignment, plaintiff filed an EEO complaint to challenge this classification, alleging racial and gender discrimination. Plaintiff has since abandoned his racial discrimination claim, but continues to pursue his gender discrimination claim. Although the district court rejected plaintiff's claim that the fitness standards violate Title VII of the Civil Rights Act, it nevertheless held that plaintiff had been improperly denied access to the agency's "Fit" program, under which employees receive access to physical fitness equipment on official time. The court awarded plaintiff $100 in damages and $500 in attorney's fees.

We agree with plaintiff that oral argument will be of assistance to the Court in resolving this matter.

Plaintiff-Appellant,

Defendant-Appellee.

The district court (per Magistrate William S. Bahn) entered final judgment on April 19, 1995, and a timely notice of appeal was filed on June 5, 1995. Plaintiff invoked the district court's jurisdiction under 28 U.S.C. ｧｧ 1331 and 1343(4). This Court's jurisdiction rests upon 28 U.S.C. ｧ 1291.

1. Whether plaintiff's challenge to his reassignment as a "detention officer," filed more than two years after his reassignment, is timely.

Statutory and Regulatory Provisions: 42 U.S.C. ｧ 2000e-16; 29 C.F.R. ｧ 1613.214(a)(1)(i).

Cases: Dring v. McDonnell Douglas Corp., 58 F.3d 1323 (8th Cir. 1995); Chaffin v. Rheem Mfg. Co., 904 F.2d 1269 (8th Cir. 1990).

2. Whether the physical fitness requirements employed by the United States Marshals Service violate Title VII of the Civil Rights Act by discriminating against men.

Statutory Provisions: 42 U.S.C. ｧ 2000e-16; 42 U.S.C. ｧ 2000e-2(l).

Cases: Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982), cert. denied, 460 U.S. 1074 (1983); United States v. City of Wichita Falls, 704 F. Supp. 709 (N.D. Tex. 1988).

3. Whether the district court erred in declining to order that plaintiff be reinstated with back pay and benefits, and in awarding plaintiff only $500 in attorney's fees.

Cases: Hensley v. Eckerhart, 461 U.S. 424, 436 (1983); Polacco v. Curators of the University of Missouri, 37 F.2d 366, 370 (8th Cir. 1994).

A. Nature of the Case.

This case involves a challenge to the physical fitness standards used by the Marshals Service to evaluate candidates for the position of Deputy U.S. Marshal. The standards, developed in conjunction with experts at the Cooper Institute for Aerobic Research, are designed to evaluate each candidate's general fitness level. The standards are relative rather than absolute; that is, they are measured on the basis of each candidate's percentile ranking within his or her "norm" group (those with similar physiological characteristics). Because physiological capacity differs with gender and age, the absolute requirements differ but the relative scores are the same -- each candidate must achieve a fitness level in the 50th percentile for his or her age and gender.

Plaintiff, a candidate for a position as a Deputy U.S. Marshal, was removed as a Deputy Marshal and reassigned as a "Detention Officer" after failing to complete a 1.5 mile run within the allotted time for his age and gender. More than two years later, plaintiff challenged the physical fitness requirements, alleging gender discrimination under Title VII of the Civil Rights Act. The district court rejected his claim, but held that plaintiff had been improperly denied access to the agency's "Fit" program, which provides employees with access to exercise equipment and the use of official time to engage in fitness training. The court awarded plaintiff $100 in damages and $500 in attorney's fees.

B. Statement of the Facts.

1. Physical Fitness Standards In the Marshals Service.

Among the requirements for employment as a Deputy U.S. Marshal is completion of the Basic Training Course at the Federal Law Enforcement Training Center (FLETC). SJA 43. ⁽¹⁾ The training course consists of two parts: the FLETC Criminal Investigator School and the U.S. Marshal Basic Training School. Ibid.

In conjunction with the Basic Training School, all recruits are required to complete a physical proficiency test, known as the "Physical Efficiency Battery" or PEB. Tr. II, at 125. The PEB consists of 5 components: push-ups, sit-ups, flexibility, body fat analysis, and a 1.5 mile run. SJA 30, 33-41. Each test measures a different area of physical fitness. Tr. II, at 208.

The physical fitness requirements are based on standards developed by the Institute for Aerobics Research in Dallas, Texas, known as the Cooper Institute. Tr. II, at 118. Developed from a database of approximately forty thousand people as a sample of the general population, id. at 189, 190, these standards are used by over three hundred law enforcement agencies. Id. at 193. The Cooper Institute's physical assessment test "is a nationally accepted and popular test for determining the general fitness of an individual." United States v. City of Wichita Falls, 704 F. Supp. 709, 714 (N.D. Tex. 1988). It is "widely accepted as an accurate indicator of overall physical health." id. at 715 n.4.

The physical fitness requirements were not designed as absolute standards to determine whether an applicant can perform specific job tasks. Tr. II, at 194-95. However, law enforcement officers may be confronted "with situations where they must exert physical force, move rapidly, and stress their cardiovascular system." Wichita Falls, 704 F. Supp. at 715. Thus, the standards are designed to evaluate the applicant's general level of fitness. See Tr. II, at 125, 127; SJA 43, 30. This general level of fitness provides a measure of the candidate's physical performance ability, potential for injury, and risk of eventual disability. See Tr. II, at 197-98, 208-09.

As a general measure of fitness, the standards are designed to evaluate the candidate's physical fitness status relative to a recognized standard based on immutable physiological characteristics determined by age and gender. A candidate will receive a passing grade by achieving a certain percentile ranking within a "norm group" of the same age and gender. As Dr. Dr. Thomas Collingwood of the Cooper Institute explained, while the absolute scores will differ with age and gender, "[i]n terms of relative scores there is no difference between the males and the females." Tr. II, at 192. Due to unalterable physiological differences (i.e., sex-specific differences in body mass, body fat, and lean body mass), a woman performing 28 sit-ups achieves the same relative level of fitness as a man performing 35 sit-ups. SJA 36. At the same time, however, a woman must demonstrate a higher absolute level of flexibility to achieve the same level of relative fitness as a man of the same age. See SJA 41.

The 1.5 mile run is designed not as a measure of speed or running ability, but as a measure of aerobic capacity or cardiovascular fitness. Tr. II, at 193, 208, 209-10. According to Dr. Collingwood, aerobic capacity "is our ability to transport oxygen to the working muscles when we do any kind of sustained physical effort." Tr. II, at 208. The 1.5 mile run is a field test of that capacity; "the shorter the time it takes to do a mile and a half run, we have found, means that the individual has a greater capability of transporting oxygen." Tr. II at 208.

Like the other tests in the PEB, the 1.5 mile run is designed as a relative rather than an absolute standard -- each candidate's score is expressed in percentile rankings relative to the general population. A score of 70 reflects the 50th percentile of the candidate's norm group. Tr. II, at 191-92.

As a result of inherent biological differences in body size, hemoglobin content, muscle mass, and body fat, women generally have lower aerobic capacity than men. See Tr. II, at 192-93; McArdle, Katch, & Katch, Exercise Physiology: Energy, Nutrition and Human Performance 217-20 (3d ed. 1991). Therefore, requiring the same absolute standard of running time for men and women would require women to operate at a much higher relative level of aerobic capacity, actually requiring women to be more physically fit than men.

Due to these inherent physiological differences, a man between the ages of 30-39 must complete the 1.5 mile run in 13 minutes, 30 seconds to reach the 50th percentile, while a woman aged 30-39 will reach the 50th percentile by completing the run in 17 minutes, 45 seconds. SJA 34. As Dr. Collingwood explained, while the absolute standard is different, "[i]n terms of relative scores there is no difference between the males and the females. They're each being compared against the average, of fiftieth percentile, of their norm group. * * * They are true norms. And what I mean to say is that they are not adjusted, they're not altered in any way." Tr. II, at 192.

2. Plaintiff's Attempts To Meet the Fitness Standards.

Plaintiff was employed by the General Services Administration as an officer in the Federal Protective Service in St. Louis when, in 1984, he applied for a position as a Deputy United States Marshal. JA 29. Plaintiff's application was accepted, and he signed a pre-employment agreement that included the following condition: "The candidate, as a condition precedent to retention in the USMS, must satisfactorily complete the prescribed Basic Training Course. Candidates must successfully complete both the FLETC Criminal Investigator School and the USMS Basic Training School in order to meet this requirement. Graduation requirements include, among other items, passing a strenuous physical training program and demonstrated proficiency in the use of designated firearms." SJA 43.

In December 1984, plaintiff attended the Federal Law Enforcement Training Center in Glynco, Georgia. After completing the eight-week academic criminal investigator school, plaintiff began five weeks of Basic Deputy Training. At the time, plaintiff weighed approximately 294 pounds. Tr. I, at 82.

During the fourth week of basic training, plaintiff experienced severe pain in his right knee. JA 30. Plaintiff was examined and treated by a local physician and by a physician at the Academy, both of whom misdiagnosed the injury as "runners knee." As a result of his injury, plaintiff was not able to meet the physical requirements of the program, and therefore did not graduate from the Academy. Ibid.

Upon returning to St. Louis, plaintiff sought medical attention and learned that his knee was shattered. JA 30. After ten weeks in a cast and six weeks in a brace, plaintiff's physician cleared him fully for all activities. JA 31.

Because plaintiff had failed to meet the physical fitness requirements of the basic training course due to injury, the Marshals Service "recycled" him into a subsequent basic training class. Tr. II, at 128. Under the recycling policy, an individual is permitted to return to his district, rehabilitate, and return to the training academy. Ibid.

Plaintiff returned to the training academy in August, 1995. Tr. I, at 19. In preliminary testing, plaintiff failed to meet the standards for sit-ups, percentage body fat, and the 1.5 mile run. SJA 48. His time in the 1.5 mile run was 20 minutes, 41 seconds. Tr. I, at 85; SJA 48.

By the time of his final PEB test in September 1985, plaintiff had slimmed down to 238 pounds. Tr. I, at 83. On September 20. 1985, plaintiff's time for the 1.5 mile run was 16 minutes, 18 seconds. Tr. I, at 86-87. Plaintiff was allowed to repeat the run three days later, posting a time of 16 minutes, 57 seconds. SJA 31. Neither these times was sufficient to qualify.

Plaintiff also failed the body fat standard, registering 27.9 percent body fat. SJA 30, 49, Tr. I, at 88. According to expert testimony, a male with 27 percent body fat is classified as obese. Tr. II, at 195-96. The Marshals Service, however, generally did not disqualify candidates solely on the basis of body fat. JA 32.

3. Plaintiff's Removal As A Deputy United States

Marshal And Reassignment As A Detention Officer.

Ordinarily, any candidate who fails Basic Deputy Training twice is removed from his position as a Deputy U.S. Marshal. Tr. II, at 84, 95. Thus, on October 24, 1985, the Marshals Service issued a letter of proposed removal to plaintiff. SJA 29. Plaintiff responded by indicating that he had suffered an injury that prevented him from meeting the PEB requirements. Tr. II, at 128. As a result, the Marshals Service determined that in lieu of removal, plaintiff would be reassigned to the position of Detention Officer, without reduction in grade or pay. Ibid. A Detention Officer's duties are more limited than those of a Deputy Marshal, primarily involving maintaining the security of prisoners in custody and judicial security. Tr. II, at 135-36.

On January 21, 1986, the Marshals Service issued a Decision on Proposed Removal, informing plaintiff that he would be reassigned from a Deputy U.S. Marshal position to that of a "Detention Officer/Guard." SJA 27. The decision informed plaintiff that he would remain in that position 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." Ibid. Upon favorable consideration of such a request, the letter continued, plaintiff could "be reassigned to a Deputy U.S. Marshal position and placed in the accelerated promotion program." Ibid.

The letter also informed plaintiff that he could file a grievance if he was not satisfied with the decision. The letter further stated: "If you believe 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 Discrimination Complaint System." SJA 28. The letter informed plaintiff that he should file a discrimination complaint with the EEO officer for the Marshals Service. Ibid.

Plaintiff therefore became the only Detention Officer in the St. Louis district, although other districts have numerous such officers. Tr. II, at 33, 85. Plaintiff did not attempt to file a claim with the EEO officer at this time, nor did he indicate that he believed he had been the victim of racial or gender discrimination. ⁽²⁾

On August 31, 1987, the Marshals Service removed plaintiff from his position as a Detention Officer for misuse of his official position and unauthorized use of a government vehicle. Tr. II, at 96-97. Plaintiff appealed to the Merit Systems Protection Board, and subsequently reached a settlement with the Marshals Service, accepting a 60-day suspension and agreeing not to contest his suspension in any form. Tr. I, at 110-13; Tr. II, at 98, 101-06.

4. Plaintiff's EEO Complaint.

On February 25, 1988 -- more than two years after the decision to reassign him as a Detention Officer -- plaintiff sent a letter to the Personnel Officer of the Marshals Service, requesting information about his status as a Detention Officer and explanations for alleged discriminatory treatment. SJA 1-2. Plaintiff also sent a letter to the Director of the Marshals Service, complaining about alleged discrimination on the basis of race and gender. Tr. I, at 35.

The Associate Director for Administration of the Marshals Service responded to plaintiff's letter. SJA 7. With respect to plaintiff's allegations of discrimination, the letter stated that "Federal regulations require discrimination complaints to be filed within 30 days of the alleged incident. More than 30 days has elapsed since the last incident. Therefore your discrimination complaint is untimely." Ibid. The letter further informed plaintiff 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." SJA 8. The letter cautioned, however, that "in light of your recent disciplinary action for the misuse of official identification and violations of standards of conduct, we cannot make assurances that you have the requisite qualities to perform as a Deputy U.S. Marshal." Ibid.; see Tr. II, at 82-83.

Plaintiff's inquiries ultimately were referred to the EEO officer for the Marshals service, who contacted plaintiff in May 1988. Tr. I, at 49. On June 20, 1988, the EEO counselor notified plaintiff that the matter could not be resolved informally and that plaintiff could file a formal complaint of discrimination. SJA 9. Plaintiff filed a formal discrimination complaint with the Department of Justice on June 30, 1988, alleging race and gender discrimination. SJA 10.

The EEO officer for the Marshals Service thereafter informed plaintiff that he had forwarded a recommendation to the Department of Justice that the complaint be rejected because plaintiff did not contact an EEO officer within the 30-day time limit. SJA 11. On June 27, 1989, the Department of Justice issued an administrative decision denying plaintiff's EEO claim. SJA 20. With respect to plaintiff's challenge to his reassignment for failure to meet the PEB standards, the Department found that the charge was not timely filed. SJA 21-22.

5. District Court Proceedings.

Plaintiff filed the instant action on May 23, 1989, naming as defendants the Director of the Marshals Service and the U.S. Marshal for the Eastern District of Missouri. JA 53. These defendants were subsequently dismissed as improper parties and replaced by the Attorney General as head of the applicable agency. JA 38. Plaintiff alleged that he "has been discriminated against on the basis of being an American Indian." JA 54. In particular, plaintiff alleged that he suffered racial discrimination by "being removed from the position of Deputy United States Marshal, and placed in the position of Detention Officer * * *." JA 54. Plaintiff also alleged that he had been denied promotions, achievement awards, equipment and uniforms, and overtime pay because of his race. JA 55. He further alleged that he had been subjected to harsher discipline on account of race. Ibid.

The complaint contained only one allegation concerning gender discrimination: "That while in training at the United States Marshals Academy, Plaintiff was discriminated against because of his race and sex, since different criteria was applied as to the graduation standards for men and women." JA 54. Plaintiff later claimed, however, that the Marshals Service discriminated against him by denying him official time to participate in the FIT program, in which employees were given access to exercise equipment and a limited amount of work time to exercise. Tr. I, at 61-62. Plaintiff sought an order reinstating him to the position of Deputy Marshal with back pay and benefits, as well as an order requiring the Marshals Service to cease and desist from all discriminatory practices against him. JA 56. ⁽³⁾

The Marshals Service filed a motion to dismiss for lack of jurisdiction, contending among other things that plaintiff's challenge to the decision to reassign him as a Detention Officer was untimely, since plaintiff did not contact an EEO officer within the 30-day regulatory deadline. The court ordered that the statute of limitations issue would be deferred until after trial. ⁽⁴⁾

After a 2-day bench trial, the court issued its first opinion on April 18, 1994. The court first held that plaintiff's discrimination claims were timely filed. The court deemed plaintiff's challenge to the decision to reclassify him as a detention officer -- filed more than 2 years after the reclassification -- to be a "continuing violation" claim because: (1) the Marshals Service had indicated that plaintiff could still become a Deputy U.S. Marshal if he satisfied the fitness requirements; (2) plaintiff sought "clarification and correction" of what he perceived to be discriminatory treatment; and (3) additional alleged discriminatory incidents stemmed from plaintiff's classification as a detention officer. JA 40.

Next, the court rejected plaintiff's claim of racial discrimination, finding that the bulk of the adverse actions against plaintiff occurred before any of the decisionmakers involved were aware that he was a Native American. JA 41-42. With respect to later incidents, the court found no evidence to connect those actions to plaintiff's race. JA 42.

The court also rejected plaintiff's claim that application of the physical fitness standards resulted from gender discrimination. The court held that "[d]efendant presented credible evidence that the normative standards were adopted in an attempt to insure that deputy marshals were fit. There is no evidence of discriminatory motive in the PEB testing procedures." JA 44. With respect to plaintiff's claim that the Marshals Service should have provided an alternate testing procedure such as swimming, the court found that "[p]laintiff produced no evidence that the lack of alternative testing methods has a disparate impact on men." Ibid. The court also found that plaintiff did not prove his claim that women were allowed to graduate without passing the PEB requirements. JA 44-45.

With respect to plaintiff's allegations of gender discrimination after he was reclassified as a detention officer, the court found that any differences in treatment were based on plaintiff's job title rather than his gender. JA 45. The court went on to hold, however, that the Marshals Service discriminated against plaintiff by denying him access to the "FIT" program, under which employees were given access to exercise equipment and a limited amount of work time to exercise. JA 45-46. The court found that the program was open to the mostly-female administrative staff but that "plaintiff was often denied the right to participate." JA 45-46. Because no evidence was presented to show that plaintiff was denied participation as the result of a general rule applying to all administrative employees, the court concluded that the denial was based upon plaintiff's gender and awarded plaintiff $100 in damages. JA 46.

Although the court held that the PEB testing procedures did not discriminate against plaintiff, it expressed reservations about the PEB test because it did not appear to reflect the actual duties of a Deputy U.S. Marshal. JA 46-48. The court therefore ordered the Marshals Service to develop a new test within 6 months and to allow plaintiff to attempt to qualify under that new standard. JA 48. In addition, the court found that plaintiff, though classified as a Detention Officer, had performed many of the duties of a Deputy Marshal. JA 48. The court therefore ordered the Marshals Service to compensate plaintiff on a theory of quantum meruit. JA 48-50.

In response to motions for reconsideration filed by both parties, the court issued a second Memorandum Opinion. The court vacated its 1994 order requiring the Marshals Service to compensate plaintiff under a quantum meruit theory, finding that sovereign immunity precludes any such award. JA 17-23. In addition, the court vacated its prior order requiring the Marshals Service to reconsider its PEB test. JA 23. However, the court continued to adhere to its previous holding that plaintiff was discriminated against by being denied access to the FIT program. JA 24-25.

The court also awarded plaintiff $500 in attorney's fees. JA 28. In doing so, the court noted that the claim upon which plaintiff prevailed was unrelated to his claim of gender discrimination in the fitness standards. JA 26. Because the only issue upon which plaintiff prevailed was "a minor issue which received little attention," ibid., the court rejected plaintiff's plea for a larger fee award.

The Court reviews the district court's legal conclusion de novo and its factual findings for clear error. Maynard v. Lockhart, 981 F.2d 981, 986 (8th Cir. 1992). Plaintiff's challenge to the attorney fee award is reviewed for abuse of discretion. Parton v. GTE North, Inc., 971 F.2d 150, 156 (8th Cir. 1992).

1. Plaintiff claims that the Marshals Service discriminated against him when it required him to meet physical fitness standards different from those applied to women and reassigned him as a Detention Officer. Plaintiff's reassignment occurred on January 21, 1986, yet he waited over two years to contact an EEO officer concerning his claim of gender discrimination. His challenge to the agency's physical fitness standards, made well beyond the 30-day time limit for contacting the agency's EEO officer, therefore should have been dismissed as untimely.

Plaintiff did not establish any basis for tolling the statute of limitations in this case. Plaintiff did not show that he was unaware of his rights or of the facts giving rise to his claim, nor did he show any conduct on the part of the Marshals Service designed to prevent him from filing a claim within the 30-day period.

The district court erred in holding that plaintiff's charge was timely. The mere promise to allow plaintiff to return if he could meet the PEB requirements does not undermine the finality of the initial decision to reassign him. At no point did anyone suggest that the standards would be altered or that plaintiff could become a Deputy Marshal without meeting those standards.

If plaintiff believed that the standards discriminated against him, it was incumbent upon him to challenge them at that time.

In addition, the mere existence of an allegedly discriminatory standard is not enough to establish a continuing violation sufficient to render his claim a timely one. The continuing violation doctrine cannot be used to circumvent the limitations period or to toll the statute of limitations in perpetuity. Rather, it allows a party subject to discrimination within the limitations period to include related claims of discrimination that occurred earlier. In this case, the only alleged discriminatory events that occurred within the limitations period -- the denial of training, uniforms and overtime given to Deputy Marshals -- are nothing more than the consequences of the January 21, 1986 decision to classify plaintiff as a Detention Officer. The continuing violation doctrine therefore does not apply.

2. Plaintiff argues that the physical fitness standards used in the PEB test require males to meet a more demanding standard than females, and therefore violate Title VII of the Civil Rights Act. This claim is without merit.

a. Plaintiff's contention that the use of different times for men and women to complete the 1.5 mile run constitutes "disparate treatment" is incorrect. In order to prove disparate treatment, a plaintiff must show that he was treated less favorably than similarly situated persons who are not within the protected class. Properly understood, the PEB standards do not treat men less favorably than women. The standards do not require men to be more fit than women, nor do they require men to demonstrate a greater percentage of aerobic capacity. The standards are used solely to establish the same relative fitness standard for males and females and to permit the selection of equally fit males and females. Neither males nor females are advantaged or disadvantaged by the use of the PEB standards.

The fact that the absolute standards are different for men and women is insufficient to show a Title VII violation. In fact, the courts have routinely upheld overall fitness and grooming requirements that contain gender differences. See Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (en banc) (collecting cases), cert. denied, 460 U.S. 1074 (1983). Application of the PEB standards to plaintiff did not treat him less favorably than women, but merely required him to meet the same relative level of fitness as all candidates for a position as a Deputy U.S. Marshal.

b. Plaintiff's reliance on section 106 of the Civil Rights Act of 1991, which generally prohibits the use of racial and gender norming of test scores, is misplaced. The PEB standards were applied to plaintiff 5 years before the 1991 Act, and there is nothing in the statute or legislative history to indicate that Congress intended that section 106 apply retroactively. See Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). Plaintiff's attempt to characterize section 106 as a codification of existing law is mistaken. No court has ever held that relative fitness standards such as the PEB test violate Title VII, and every court to address the matter has characterized section 106 as a new substantive provision.

c. Even if section 106 were to apply to this case, the PEB standards survive. The PEB test does not apply "different cut-off scores" on the basis of gender within the meaning of section 106. Rather, the test applies the same cut-off scores, requiring the same level of fitness for every candidate. Because the test is designed to determine the candidate's general level of fitness rather than how fast the candidate can run, the operative "score" is not the time, but the degree of aerobic capacity demonstrated by the candidate. Viewed from this perspective, "there is no difference between the males and the females." Tr. II, at 192.

3. Plaintiff also errs in his contention that the district court should have ordered that he be reinstated as a Deputy Marshal with full back pay and benefits. The district court held that plaintiff was not improperly reassigned to the position of Detention Officer. Unless plaintiff were to prevail on appeal -- and he should not -- plaintiff would not be entitled to reinstatement and back pay.

Plaintiff's challenge to the district court's award of only $500 in attorney's fees also is without merit. The relatively small fee award simply reflects of the fact that plaintiff's efforts were largely unsuccessful: the district court rejected his claims of racial discrimination and his challenge to the physical fitness standards, ruling in his favor only on "a minor issue which received little attention." JA 26.

I. PLAINTIFF'S CHALLENGE TO THE PHYSICAL
FITNESS STANDARDS IS UNTIMELY.

The Government moved to dismiss plaintiff's Title VII action on the ground that it was not timely filed. While the district court rejected that argument, this Court may affirm on any ground supported by the record. White v. Moulder, 30 F.3d 80, 83 (8th Cir. 1994), cert. denied, 115 S. Ct. 738 (1995). As we show below, plaintiff's claim was not filed within the applicable limitations period.

1. A complainant alleging discrimination under Title VII of the Civil Rights Act must exhaust his administrative remedies before seeking judicial review. See 42 U.S.C. ｧ 2000e-16. The complainant must bring the alleged discriminatory acts to the attention of the agency's EEO counselor within 30 days of the alleged incident. 29 C.F.R. ｧ 1613.214(a)(1)(i). This requirement operates as a statute of limitations; failure to meet the 30-day deadline will result in dismissal of the claim. Jordan v. United States, 522 F.2d 1128, 1129-32 (8th Cir. 1975); see Arnold v. United States, 816 F.2d 1306, 1310 (9th Cir. 1987).

The statute of limitations begins to run "the date the adverse employment action is communicated to the plaintiff." Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1995). In the case at bar, plaintiff claims that the Marshals Service discriminated against him on the basis of gender when it required him to meet physical fitness standards different from those applied to women, refused to allow him to graduate from the training academy, and reassigned him as a Detention Officer. The PEB standards were applied to plaintiff when he attended Basic Training in February 1985 and again in September 1985. On January 21, 1986, the Marshals Service notified plaintiff that he was being removed from his position as a Deputy Marshal and reassigned as a Detention Officer.

Thus, the 30-day limitations period began to run, at the latest, on January 21, 1986. Yet plaintiff waited over two years to bring his discrimination allegations to the attention of an EEO officer. His challenge to the agency's physical fitness standards therefore should have been dismissed as untimely.

Although Title VII's filing periods are in the nature of statutes of limitations and not jurisdictional absolutes, the Supreme Court has held that the limitations period should be tolled only in exceptional circumstances. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). Plaintiff did not establish any basis for tolling the statute of limitations in this case. Plaintiff did not show that he was unaware of his rights or of the facts giving rise to his claim, nor did he show any conduct on the part of the Marshals Service designed to prevent him from filing a claim within the 30-day period. See Dring, 58 F.3d at 1328-29; see also Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1272 (8th Cir. 1990). Indeed, plaintiff was well aware of the PEB requirements for both men and women, and was explicitly advised that if he believed his reassignment was the result of either race or gender discrimination, he should contract the appropriate EEO officer. SJA 28. Plaintiff thus did not show the "exceptional circumstances" required for equitable tolling. Dring, 58 F.3d at 1330.

2. The district court nevertheless concluded that plaintiff's charge was timely, deeming the claim to involve a continuing violation. The court noted: (1) the Marshals Service's assurance to plaintiff that he could become a Deputy Marshal if he could meet the PEB requirements in the future; (2) plaintiff's efforts to obtain "clarification and correction of what he perceived to be discriminatory treatment"; and (3) alleged discriminatory incidents that "are a continuation of his classification as a detention officer." JA 40. None of these factors, however, provides a basis for considering timely a claim filed more than two years after the application of the PEB standards to plaintiff.

a. The district court reasoned that because the Marshals Service told plaintiff that he could be returned to his position as a Deputy Marshall if he could successfully complete the PEB, his classification as a Detention Officer "was not necessarily final, and that the Marshal Service wanted to work with plaintiff to improve his situation." JA 40. Yet the fact that plaintiff could reapply for a position as a Deputy Marshal is irrelevant because plaintiff never did reapply. The PEB standards were last applied to plaintiff in 1985 and 1986.

Moreover, the mere promise to allow plaintiff to return if he could meet the PEB requirements does not undermine the finality of the initial decision to reassign him. The notice of reassignment makes clear that, while plaintiff can reapply if he meets the standards in the future, an affirmative decision to reassign him was made on January 21, 1986. See SJA 27-28. It is that decision that started the limitations period running. See Dring, 58 F.3d at 1328.

Nor can plaintiff claim that he was induced to "sleep on his rights" by the assurance that he could become a Deputy Marshal if he met the PEB requirements in the future. At no point did anyone suggest that the standards would be altered or that plaintiff could become a Deputy Marshal without meeting those standards. Indeed, the offer to allow plaintiff to reapply for his former Deputy Marshal position was not a guarantee that he would be given that position. Tr. II, at 103-04.

If plaintiff believed that he would ultimately become a Deputy Marshal, it was because he thought he could meet the existing PEB standards, and not because he thought that the Marshals Service would change its mind and allow him to graduate from the academy on the basis of a lesser fitness level. The fact that an employer indicates it will consider the plaintiff for another job later is insufficient to toll the statute of limitations. See Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 288 (8th Cir. 1988) (attempts by supervisors to locate a new position within the company for plaintiff do not toll the statute of limitations).

b. The district court also erred in holding that the claim was timely because plaintiff "immediately began seeking clarification and correction of what he perceived to be discriminatory treatment" (JA 40). If anything, such a finding compels a conclusion that the claim was not timely. If plaintiff believed he had been discriminated against at the outset, he has no excuse for failing to challenge his reassignment at that time. There is no evidence to suggest that anyone at the Marshals Service prevented him from challenging his reassignment. ⁽⁵⁾

In addition, the district court's finding that plaintiff "immediately" began seeking clarification and correction of his treatment is not supported by the evidence. While plaintiff testified that after his reassignment he worked on his fitness with an eye toward meeting the PEB requirements, see Tr. I, at 111, there is no evidence that he questioned the use of different scores for men and women until February 1988 -- more than two years after his reassignment. ⁽⁶⁾

c. The district court also relied upon the "continuing violation" doctrine, holding that plaintiff's claim is timely because additional discriminatory incidents alleged by plaintiff "are a continuation of his classification as a detention officer, a classification which is the result of the decisions surrounding plaintiff's performance at the Academy." JA 40. This holding reflects a fundamental misinterpretation of the continuing violation doctrine.

The continuing violation doctrine permits a Title VII plaintiff to challenge incidents that occurred outside the limitations period if the incidents are sufficiently related to events occurring within the limitations period that they constitute a continuing pattern of discrimination. See Mashceroni v. Board of Regents, 28 F.3d 1554, 1560 (10th Cir. 1994). However, "[A] violation is not continuing merely because the effects of an allegedly discriminatory action continue to be felt over a period of time." Chaffin, 904 F.2d at 1271-72. Thus, "the initial job assignment, like a hiring decision, in no respect constitutes a continuing violation" even though the effects of the job assignment continue. Heyman v. Tetra Plastics Corp., 640 F.2d 115, 120 (8th Cir. 1981); see Delaware State College v. Ricks, 449 U.S. 250, 258 (1980); Ashley v. Boyles Famous Corned Beef Co., 66 F.3d 164, 167 (8th Cir. 1995).

In the case at bar, the district court mistakenly viewed the effects of the original employment decision as a continuing violation. Yet each allegation of subsequent discrimination is based not on plaintiff's challenge to the physical fitness standards, but on his classification as a Detention Officer rather than a Deputy Marshal. Plaintiff claimed, for instance, that he had been denied promotional opportunities, training, uniforms, and overtime otherwise available to Deputy Marshals. As the district court recognized, however, those instances resulted from his classification as a Detention Officer. JA 45. The Supreme Court has recognized that loss of seniority and benefits that accompany a prior adverse employment action are merely the effects of the previous decision and do not constitute a continuing violation. United Air Lines v. Evans, 431 U.S. 553, 558 (1977). ⁽⁷⁾

In addition, the fact that plaintiff remains employed by the Marshals Service does not establish a continuing violation. "Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Ricks, 449 U.S. at 257.

Nor can plaintiff rely on the continuing violation doctrine simply because the PEB standards still exist. The mere existence of an allegedly discriminatory standard is not enough to establish a continuing violation. The defendant must have applied that standard to the plaintiff within the limitations period. The continuing violation doctrine "simply allows an employee to include * * * discriminatory acts that occurred before the limitations period, provided that at least one of the acts complained of fall within the limitations period." Scott v. St. Paul Postal Serv., 720 F.2d 524, 525 (8th Cir. 1983) (emphasis supplied), cert. denied, 465 U.S. 1083 (1984).

Thus, while some courts have stated that the use of discriminatory employment tests or seniority lists involve continuing violations, see Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 114 S. Ct. 1612 (1994), the courts have made clear that the test must be applied during the limitations period in order for the action to be considered timely. Compare Guardians Ass'n of New York City v. Civil Service Comm'n, 633 F.2d 232, 249-51 (2d Cir. 1980) (use of discriminatory employment test is a continuing violation where the employer made hiring decisions based on the test within the limitations period), aff'd, 463 U.S. 582 (1983), with Bronze Shields, Inc. v. New Jersey Dept. of Civil Serv., 667 F.2d 1074, 1080-84 (3d Cir. 1981) (challenge to discriminatory test and eligibility list were time barred where no discriminatory acts took place during the limitations period), cert. denied, 458 U.S. 1122 (1982); see also Association Against Discrimination v. City of Bridgeport, 647 F.2d 256, 274-75 (2d Cir. 1981) (challenge to an employment test is timely where discriminatory action based on the test occurred within the limitations period), cert. denied, 455 U.S. 988 (1982).

The continuing violation doctrine cannot be used to circumvent the limitations period or to toll the statute of limitations in perpetuity. Rather, it allows a party subject to discrimination within the limitations period to include related claims of discrimination that occurred earlier. In this case, the only alleged discriminatory events that occurred within the limitations period -- the denial of training, uniforms and overtime given to Deputy Marshals -- are nothing more than the consequences of the January 21, 1986 decision to classify plaintiff as a Detention Officer. The continuing violation doctrine therefore does not apply.

II. THE PHYSICAL FITNESS STANDARDS USED BY
THE MARSHALS SERVICE DO NOT VIOLATE TITLE
VII OF THE CIVIL RIGHTS ACT.

Plaintiff argues that the physical fitness standards used in the PEB test require males to meet a more demanding standard than females, and therefore violate Title VII of the Civil Rights Act. Plaintiff relies primarily on section 106 of the Civil Rights Act of 1991, which states: "It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin." See 42 U.S.C. ｧ 2000e-2(l).

As plaintiff acknowledges, however, the Marshals Service applied the allegedly discriminatory standards to him in 1985 and 1986 -- 5 years before enactment of the 1991 Act. Plaintiff nevertheless seeks solace in section 106, arguing that it merely codified pre-existing law or, in the alternative, that the Marshals Service is guilty of a "continuing violation" that is covered by the 1991 Act.

Plaintiff's challenge to the physical fitness standards is groundless. First, the standards do not unlawfully discriminate against men, and easily withstand plaintiff's claim of disparate treatment. Second, plaintiff is incorrect in arguing that the 1991 Civil Rights Act applies to the present case. Finally, even if the 1991 Act applies, section 106 of that Act does not prohibit the type of physical fitness test at issue here.

A. The Physical Fitness Standards Used By The Marshals Service Do Not Unlawfully Discriminate Against Men.

Plaintiff argues that the use of different times for men and women to complete the 1.5 mile run constitutes "disparate treatment" prohibited by Title VII. In order to prove disparate treatment, a plaintiff must show that he was treated less favorably than similarly situated persons who are not within the protected class. Mann v. Frank, 7 F.3d 1365, 1370 (8th Cir. 1993); Johnson v. Legal Servs. of Arkansas, Inc., 813 F.2d 893, 896 (8th Cir. 1987); see International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Moreover, the "hallmark" of disparate treatment is "intentional discrimination against the plaintiff." Hutson v. McDonnell Douglas Corp., 63 F.2d 771, 775 (8th Cir. 1995).

Plaintiff's argument reflects a misunderstanding of the purpose of the PEB test in general and the 1.5 mile run in particular. The test is not designed to evaluate the candidate's ability to perform a specific job task (such as chasing or arresting a suspect). Tr. II, at 94-95. Tests that evaluate specific tasks deemed necessary for the job use absolute scores, since the only question is whether the candidate (regardless of age or gender) can perform the task. The PEB test, in contrast, is a test of general physical fitness and health. Tr. II, at 125-27; SJA 30, 43. The test is designed to measure each candidate's fitness level, ensuring that the candidate is fit enough to handle whatever might come his or her way.

Properly understood, the PEB standards do not treat men less favorably than women. The standards do not require men to be more fit than women, nor do they require men to demonstrate a greater percentage of aerobic capacity. The standards are used solely to establish the same relative fitness standard for males and females and to permit the selection of equally fit males and females. Neither males nor females are advantaged or disadvantaged by the use of the PEB standards.

A slower time in the 1.5 mile run does not mean that the female candidate is less fit than the male candidate. The result is attributable to the immutable physical differences between men and women. As Dr. Collingwood explained, "In terms of relative scores there is no difference between the males and the females." Tr. II, at 192-93. The Assistant Director for Human Resources at the Marshals Service also explained that "in terms of physical capabilities of both men and women, because of their biological differences, the one standard is no more demanding of the man than it is of the woman." Id. at 153.

Requiring females to meet the same time in the 1.5 mile run as males actually requires them to achieve a significantly higher level of fitness because women would be performing at a higher percentage of maximum aerobic capacity. Indeed, plaintiff's argument would preclude the use of fitness tests in law enforcement. If the absolute requirements were set at the standards currently governing men, they would require female candidates to be significantly more physically fit than their male counterparts, resulting in a disparate impact. If, on the other hand, men were permitted to meet the absolute standard currently used for women, the standards would not screen out men who are physically unfit.

Indeed, plaintiff's situation is illustrative of this fact. Unrebutted expert testimony established that plaintiff's physical condition is classified as obesity. Tr. II, at 196. This condition puts plaintiff at an increased risk of injury -- indeed, the same type of injury plaintiff suffered while attempting to meet the PEB requirements. Id. at 197-98. The current standards are not overly rigorous -- only 20 out of approximately 600 candidates have failed to meet them. Tr. II, at 174. If the standards were lowered even further for men, they would fail to screen out physically unfit candidates who face an increased risk of injury.

Plaintiff does not argue that the specific standards used in the PEB are not an accurate measure of physical fitness, nor did he submit any evidence to rebut the expert testimony of Doctor Collingwood explaining the basis of the standards. Instead, petitioner relies solely upon the fact that the 1.5 mile run has different time requirements for men and women.

The mere fact that the absolute standards are different for men and women is insufficient to show a Title VII violation. In fact, the courts have routinely upheld overall fitness and grooming requirements that contain gender differences. In Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249 (8th Cir. 1975), for instance, this Court upheld an employer's personal grooming standard that required males, but not females, to limit the length of their hair. Noting that the hair length policy is "part of a comprehensive grooming code" that applies to men and women alike, the Court held that differences in the appearance requirements are valid as long as the policy is "imposed in an evenhanded manner." Id. at 1252. Every circuit that has considered the issue has upheld different grooming standards for males and females as long as they "do not significantly deprive either sex of employment opportunities" and "are even-handedly applied to employees of both sexes." See Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 605-06 (9th Cir. 1982) (en banc) (collecting cases), cert. denied, 460 U.S. 1074 (1983).

In addition, "[s]everal courts have similarly upheld physiologically based policies which set a higher maximum weight for men than for women of the same height." Id. at 606 (collecting cases). The Ninth Circuit opined that different weight requirements are valid as long as "no significantly greater burden of compliance was imposed on either sex; that is the key consideration." Ibid.

In the case at bar, Knott and Gerdom compel the conclusion that the PEB standards do not violate Title VII. The 1.5 mile run is part of a comprehensive fitness requirement that is imposed on both males and females. While the absolute scores differ, the test imposes no greater burden upon males than it does upon females, requiring that they meet the same level of overall fitness.

No court has ever suggested that the standards developed by the Cooper Institute -- in use by over 300 law enforcement agencies -- treat men less favorably than women. In fact, at least one court has expressly endorsed those physical fitness standards. In United States v. City of Wichita Falls, 704 F. Supp. 709, 714 (N.D. Tex. 1988), the court upheld a police department's use of the same physical assessment test at issue here, noting that "[w]omen are compared against women and men are compared against men." The court held that the test "is a nationally accepted and popular test for determining the general fitness of an individual" and is "widely accepted as an accurate indicator of overall physical health." Id. at 714, 715 n.4. The court also held that it was reasonable to require law enforcement officers to meet a minimum level of physical fitness. Id. at 715.

Under the PEB standards, equally fit males and females are selected and there is no preference for either gender. The application of those standards to plaintiff did not treat him less favorably than women, but merely required him to meet the same relative level of fitness as all candidates for a position as a Deputy U.S. Marshal. The standard does not result in disparate treatment and does not violate Title VII.

B. Section 106 Of The Civil Rights Act
Of 1991 Does Not Apply To This Case.

While acknowledging that the PEB standards were applied to him well before the passage of the Civil Rights Act of 1991, plaintiff nevertheless seeks to invoke section 106 of that Act, which generally prohibits the use of racial and gender norming of test scores. Plaintiff does not explicitly argue that the 1991 Act is retroactive. That is not surprising given the Supreme Court's recent decision in Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994). As the Court made clear in Landgraf, the traditional presumption against the retroactivity of statutes that effect a substantive change in the law applies unless Congress has clearly expressed an intent to the contrary. See id. at 1501-08; Maitland v. University of Minnesota, 43 F.3d 357, 361-63 (8th Cir. 1994). There is nothing in the statute or legislative history to indicate that Congress intended that section 106 apply retroactively.

Plaintiff nevertheless argues (Pl. Br. at 24-25) that section 106 should apply because it merely codified pre-existing Title VII law. Plaintiff is incorrect. Plaintiff has cited no cases (either before or after the 1991 Act) holding that relative physical fitness standards violate Title VII. In fact, as discussed above (pp. 34-35, supra), courts repeatedly upheld both weight and appearance standards that differed between men and women. See Knott, 527 F.2d at 1252; Gerdom, 692 F.2d at 605-06.

Moreover, every court to address the matter has characterized section 106 as a new substantive provision. See Landgraf, 114 S. Ct. at 1490 (section 106 "enacts a new prohibition against adjusting test scores") (emphasis supplied); Baynes v. A T & T Technologies, Inc., 976 F.2d 1370, 1371, n.5 (11th Cir. 1992) (referring to section 106 as "[t]he most 'substantive' of the obligations created by the Civil Rights Act of 1991."); Luddington v. Indiana Bell Tele. Co., 966 F.2d 225, 229 (7th Cir. 1992) (1991 Act does not prohibit any conduct not already prohibited except the practice of race norming), cert. denied, 114 S. Ct. 1641 (1991). The language in the legislative history upon which plaintiff relies -- that the practice of "race norming" violates the "spirit" of Title VII and therefore should also violate the "letter" of the law -- merely explains the reason for the amendment. See H.R. Rep. No. 102-40(II). 102d Cong., 1st Sess. 65, reprinted in 1991 U.S.C.C.A.N. 694, 751. It does not suggest that norming already violated Title VII.

Plaintiff also argues that section 106 ought to apply because the maintenance of the PEB standards for the 1.5 mile run is a "continuing violation." As discussed in detail in the preceding section (pp. 26-29, supra), the mere fact that the standards continue to exist is insufficient to constitute a continuing violation of plaintiff's civil rights. Plaintiff was reassigned as a result of his failure to meet the standards in 1986. At no point after that did he reapply for a position as a Deputy Marshal or otherwise attempt to take the PEB test. Having failed to challenge the standards when they were applied to him, he cannot now rely on subsequent statutory changes. Cf Schanou v. Lancaster County School Dist., 62 F.3d 1040, 1043-44 (8th Cir. 1995) (parent who removed his child from school lacks standing to challenge continued existence of bible distribution policy).

C. Even If Section 106 Of The 1991 Civil

Rights Act Applied, It Does Not Prohibit

The Physical Fitness Test At Issue Here.

Section 106 of the 1991 Act makes it an unlawful employment practice "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin." See 42 U.S.C. 2000e-2(l). Plaintiff argues that the application of different times for completing the 1.5 mile run violates section 106's prohibition against "different cut-off scores" on the basis of gender. This claim is without merit.

The PEB test does not apply "different cut-off scores" on the basis of gender within the meaning of section 106. Rather, the test applies the same cut-off scores, requiring the same level of fitness for every candidate. Tr. II, at 192. Once that fitness level is determined, the scores "are not adjusted, they're not altered in any way." Tr. II, at 192-93.

Plaintiff's attack on the 1.5 mile test reflects a misunderstanding of the concept of relative standards. As explained above (pp. 31-35, supra), while men and women must complete the 1.5 mile run in different time periods, that does not mean that the test applies discriminatory cut-off scores. Because the test is designed to determine the candidate's general level of fitness rather than how fast the candidate can run, the operative "score" is not the time, but the degree of aerobic capacity demonstrated by the candidate. Viewed from this perspective, "there is no difference between the males and the females." Tr. II, at 192. "[B]ecause of their biological differences, the one standard is no more demanding of the man than it is of the woman." Id. at 153.

Section 106 is entitled "Prohibition of Discriminatory Use of Test Scores." As its title suggests, "the section intends only to ban the discriminatory adjustment of test scores or cutoffs." 137 Cong. Rec. H9547 (daily ed. Nov. 7, 1991) (statement of Rep. Hyde) (emphasis supplied); see also ibid. ("race norming or any other discriminatory adjustment of scores or cutoff points of any employment related test is illegal."); id. at S15476 (daily ed. Oct. 30, 1991) (statement of Sen. Dole). Thus, section 106 was designed to prevent the arbitrary alteration of test scores or the use of different cutoff scores based on nothing more than the fact that certain groups do not score as well on the test in question.

The PEB test, in contrast, neither "adjusts" scores nor applies different cut-offs solely because certain groups do not score as well on the test. Rather, the PEB takes into account immutable physiological characteristics widely recognized in the scientific community, and uses those characteristics to evaluate each candidate's physical ability. When Congress enacted section 106, it indicated that "[a]pplicants and workers of all races, ethnic groups, and genders have the right to a level playing field and to selection based on merit." 137 Cong. Rec. H9529 (daily ed. Nov. 7, 1991) (statement of Rep. Edwards). That is precisely what the PEB test does. It provides a level playing field by ensuring that each candidate meet the same level of overall fitness.

III. PLAINTIFF'S ARGUMENTS WITH RESPECT TO THE
REMEDY AND ATTORNEY'S FEES ARE WITHOUT MERIT.

Plaintiff argues (Pl. Br. at 26-29) that the district court erred in failing to order that he be reinstated as a Deputy Marshal with full back pay and benefits. This claim is frivolous, since the district court held that plaintiff was not improperly reassigned to the position of Detention Officer. However, plaintiff's argument largely assumes that he has won on this count. Unless plaintiff were to prevail on appeal -- and he should not -- plaintiff would not be entitled to reinstatement and back pay. Moreover, even if plaintiff were to prevail on appeal, the calculation of back pay and benefits should be addressed by the district court in the first instance.

To the extent that plaintiff is arguing that the district court's ruling in his favor with respect to the FIT program compels an order of reinstatement with back pay and benefits, he is incorrect. As the district court correctly recognized (JA 26), the allegations of gender discrimination with respect to the FIT program are unrelated to the application of the PEB standards, and therefore cannot form the basis for reversing the decision to reassign plaintiff as a Detention Officer.

Plaintiff's challenge to the district court's award of only $500 in attorney's fees also is without merit. The relatively small fee award simply reflects of the fact that plaintiff's efforts were largely unsuccessful: the district court rejected his claims of racial discrimination and his challenge to the physical fitness standards, ruling in his favor only on "a minor issue which received little attention." JA 26.

While even this small measure of success is sufficient to render plaintiff a "prevailing party" for purposes of attorney's fees, it does not guarantee him a large award. As the Supreme Court noted in Hensley v. Eckerhart, 461 U.S. 424, 436 (1983), "[t]hat the Plaintiff is a 'prevailing party' * * * may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." The "most critical factor," the Court noted, "is the degree of success obtained. Id. at 436.

Plaintiff did not provide the district court with information to determine the number of hours plaintiff's counsel spent on this minor issue. JA 27. The court, however, evaluated the complexity of the issue, the performance of counsel at trial and the circumstances surrounding preparation for the trial, and found that counsel reasonably expended approximately one tenth of his efforts on the issue on which plaintiff prevailed. JA 27-28. It was not an abuse of discretion for the district court to award fees commensurate with plaintiff's very limited success. See Polacco v. Curators of the University of Missouri, 37 F.2d 366, 370 (8th Cir. 1994).

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,
FRANK W. HUNGER
Assistant Attorney General

MARLEIGH D. DOVER
(202) 514-3511

MATTHEW M. COLLETTE
(202) 514-4214 Attorneys, Appellate Staff
Civil Division, Room 3127
Department of Justice
Washington, D.C. 20530-0001

DECEMBER 1995

I hereby certify that on this 7th day of December, 1995, I served the foregoing Brief for Appellee and Supplemental Joint Appendix by causing a copy to be mailed to:

Stephen H. Gilmore
906 Olive St., # 500
St. Louis, MO 63101

Michael P. Bastian 7116 Oakland Ave.
St. Louis, MO 63117

MATTHEW M. COLLETTE
Attorney

1. "SJA" refers to the Supplemental Joint Appendix filed concurrently with this brief.

2. Instead, in February 1986 plaintiff filed an appeal of the reassignment decision with the Merit Systems Protection Board, alleging handicap discrimination. See Motion to Dismiss and For Summary Judgment, at 4 n.3. The MSPB dismissed the claim because it lacks jurisdiction over reassignments. Ibid.

3. By stipulation of the parties, the case was referred to a United States Magistrate Judge. JA 4.

4. The motion to dismiss stayed the time to file an answer to the complaint. See Fed. R. Civ. P. 12(a)(4). After the court postponed decision on the motion pending a trial on the merits, the government neglected to file an answer within the 10 days required by Rule 12. After trial, the government moved for leave to file its answer out of time. The district court granted the motion. JA 37-38.

5. In fact, plaintiff did challenge the decision to reassign him as a Detention Officer in February 1986, but he did so on the ground of handicap discrimination rather than gender discrimination. See Motion to Dismiss and For Summary Judgment, at 4 n.3.

6. Plaintiff testified that "I repeatedly, during this time, wrote letters to the Marshal, to my supervisor, or memorandums I guess is the best way to put, requesting that they give me credentials, or requesting that they allow me to participate in training, et cetera, et cetera, put me back in my position." Tr. I, at 34. However, plaintiff never stated precisely when these letters were written -- the only letters he produced are dated February 1988 or later -- and he never testified that he complained specifically about the difference in the physical fitness standards for men and women.

7. Plaintiff's other claim of discrimination, denial of access to the FIT program, is wholly unrelated to his allegation that the PEB standards discriminate against men. The district court recognized as much. See JA 26.