## 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 No. 95-1533 (D.C. No. 93-B-1378) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable William F. Downes, District Judge, Un ited States District Court for the District of Wyoming, sitting by desig nation. -2- ORDER AND JUDGMENT *
Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from the district court’s grant o f summary judgment in favor of defendants. Plaintiff brought suit agains t defendants alleging age discrimination in violation of the Age Discriminati on 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) and29 U.S.C. § 255(a) in

finding the action time-barred. Those statutes pro vided a two-year limitations period to bring an ADEA claim, or three years if th e alleged violation was willful. The district court found that the record did not ev idence 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 thatthe administrative proceeding has been terminated to bring a civil action. Becau se 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 pe riod in cases filed after effective date of amendment but where alleged discr iminatory act occurred before effective date). We note that we agree with the di strict 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 we re 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 judgme nt. Plaintiff was notified that his job application was unsuccessful on June 2 9, 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, 199 3. Plaintiff’s claims are timebarred. SeeHunt v. Bennett , 17 F.3d 1263, 1265-66 (10th Cir. 1994) (holding § 1983 claims are governed by Colorado’s two-year l imitations period for personal injury actions); 29 U.S.C. § 626(e) (provi ding that ADEA claim may be brought within ninety days after receipt of notice of termination of EEOC action). 1-4-

The judgment of the United States District Court fo r the Colorado is
AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge