F I L E D

United States Court of Appeals

Tenth Circuit

JUL 30 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BILLY W. WILLIAMS, 

Plaintiff-Appellant, 

v.

STATE OF COLORADO, ROY

ROMER, Governor, State of

Colorado; PERSONNEL BOARD,

STATE OF COLORADO,

MEMBERS OF (Gloria Millard,

Philip J. Reynolds, Donald R.

Luttrull, Board Chairman); SHIRLEY

O. HARRIS, Executive Director,

State Department Personnel;

COLORADO SCHOOL OF MINES,

a Colorado state agency; GEORGE S.

ANSELL, President, Colorado School

of Mines; COLORADO SCHOOL OF

MINES BOARD OF TRUSTEES,

MEMBERS OF, (Sally Vance Allen,

Joe Coors, Jr., Anthony L. Joseph,

Terence P. McNulty, Donald E.

Miller, Jeff Odenbaugh, Charles E.

Stott, Jr., Russell L. Wood, Board

President); MARTHA GAIL

FALLEN, News Information

Director; NELS JENSEN, named: 

Nels (Nordy) Nordets Gaard Jensen,

Director of Public Relations;

ROBERT W. THOMPSON, JR.,

Administrative Law Judge, State

Personnel Board,

Defendants-Appellees.

No. 95-1533

(D.C. No. 93-B-1378)

(D. Colo.)
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** The Honorable William F. Downes, District Judge, United States District

Court for the District of Wyoming, sitting by designation. 

-2-

ORDER AND JUDGMENT*

Before KELLY and HENRY, Circuit Judges, and DOWNES,** District Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff appeals from the district court’s grant of summary judgment in

favor of defendants. Plaintiff brought suit against defendants alleging age

discrimination in violation of the Age Discrimination in Employment Act,

29 U.S.C. §§ 621-634, and claiming violations of 42 U.S.C. § 1983 and his

constitutional rights. The allegations center around plaintiff’s unsuccessful

application for employment with the Colorado School of Mines.
1 The district court relied on 29 U.S.C. § 626(e) and 29 U.S.C. § 255(a) in

finding the action time-barred. Those statutes provided a two-year limitations

period to bring an ADEA claim, or three years if the alleged violation was willful. 

The district court found that the record did not evidence a willful violation and,

therefore, plaintiff’s ADEA claim filed three years after the cause of action

accrued was untimely.

The Civil Rights Act of 1991 amended the ADEA, and § 626(e) now allows

a plaintiff ninety days after receiving notice that the administrative proceeding

has been terminated to bring a civil action. Because plaintiff filed this action

after the effective date of the amended statute, we apply the ninety-day limitations

period. See, e.g., Forest v. United States Postal Serv., 97 F.3d 137, 141 (6th Cir.

1996) (collecting cases applying new limitations period in cases filed after

effective date of amendment but where alleged discriminatory act occurred before

effective date). We note that we agree with the district court’s finding that no

willful violation occurred and, thus, under either version of the statute, plaintiff’s

claims are time-barred.

-3-

The district court found that plaintiff’s claims were time-barred and, on

de novo review, see Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022,

1024 (10th Cir. 1992), we affirm the summary judgment. Plaintiff was notified

that his job application was unsuccessful on June 29, 1990; the EEOC’s finding of

no discrimination was issued on September 19, 1991; and plaintiff filed his

complaint in federal district court on June 29, 1993. Plaintiff’s claims are timebarred. See Hunt v. Bennett, 17 F.3d 1263, 1265-66 (10th Cir. 1994) (holding

§ 1983 claims are governed by Colorado’s two-year limitations period for

personal injury actions); 29 U.S.C. § 626(e) (providing that ADEA claim may be

brought within ninety days after receipt of notice of termination of EEOC

action).1
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The judgment of the United States District Court for the Colorado is

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge