                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          APR 9 1997
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    AL BOZNER, MARY LOU DALE,
    BLAINE KELLER, GEORGIA
    RADOSEVICH and RUTH
    TSCHANZ,
                                                       No. 96-8087
                Plaintiffs-Appellants,             (D.C. No. 95-CV-269)
                                                         (D. Wyo.)
    v.

    SWEETWATER COUNTY SCHOOL
    DISTRICT NUMBER ONE, DON
    BAUMBERGER, GRANT
    CHRISTENSEN, MARY HAY
    CHANT, KAY MARSCHALK,
    TERRY MCMANUS, ROBERT
    RAMSEY, KITTY SMITH and
    NORMA STENSAAS, each
    individually and in his/her capacity as
    Superintendent/School Board Member
    of Sweetwater County School District
    No. One, respectively,

                Defendants-Appellees.


                              ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and LUCERO, Circuit Judges.



*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiffs-appellants Al Bozner, Mary Lou Dale, Blaine Keller, Georgia

Radosevich, and Ruth Tschanz were certified continuing contract employees of

defendant-appellee Sweetwater County School District Number One (the district).

tThcy sued the district, the superintendent of schools, and individual members of

the district’s board of trustees (the board), claiming that the district’s denial of

their requests for early retirement benefits gave rise to claims under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, and 42 U.S.C.

§ 1983.

      The parties filed cross motions for summary judgment. On July 23, 1996,

the district court granted defendants’ motion for summary judgment. We exercise

jurisdiction over the judgment of the district court, pursuant to 28 U.S.C. § 1291, 1



1
       Plaintiffs filed a notice of appeal on September 3, 1996. After the district
court granted defendants’ motion for attorneys’ fees and costs on September 11,
1996, plaintiffs did not file a new or supplemental notice of appeal. Although the
parties have briefed issues relating to the award, we have no jurisdiction over
these issues and do not reach them. See Utah Women’s Clinic, Inc. v. Leavitt, 75
F.3d 564, 568-69 (10th Cir. 1995), cert. denied, 116 S. Ct. 2551 (1996); see also
16A Charles A. Wright et al., Federal Practice and Procedure § 3949.4 at 65-66
(2d ed. 1996).

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and affirm for substantially the same reasons stated in the district court’s

comprehensive order and decision, reported as Bozner v. Sweetwater County

School Dist. Number One, 935 F. Supp. 1230 (D. Wyo. 1996).

                                  BACKGROUND

      During the 1991-92 school year, plaintiffs applied for benefits under the

district’s Early Retirement Incentive Plan, which, since 1983, had been

incorporated annually into the negotiations agreement between the district and the

Sweetwater Education Association (SEA), plaintiffs’ bargaining representative.

The plan provided that a teacher or administrator with ten years of credited

service with the district, and who was between the age of fifty and sixty-five,

could apply for early retirement benefits. The benefits were calculated on a

percentage of the applicant’s salary, with the percentage decreasing as the age of

the applicant increased. Under the plan, the board maintained discretion to accept

or deny any request from an applicant who had not reached age sixty-five. Before

the 1991-92 school year, the board had approved all applications for benefits.

      In the fall of 1991, the district’s attorney advised the board that the rate

schedule was discriminatory, and could be considered a violation of the ADEA, as

amended by the Older Workers Benefit Protection Act of 1990, Pub. L. No. 101-

433, 104 Stat. 978. The board and the SEA agreed to reopen negotiations to

resolve the ADEA concern. At a meeting held March 9, 1992, board members


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stated that they felt that the plan was illegal and that, in good faith, they could not

approve of any request for early retirement. Shortly after that, the board and the

SEA agreed to revise the plan by removing the discriminatory rate schedule.

      The board and the SEA continued their negotiations to decide the uniform

rate on which to base the benefits. Both parties realized that budgeted funds were

inadequate to fund all the submitted early retirement requests at the highest rate

under the old schedule. The board suggested rates from 55% (under which all

applicants could receive benefits) to 90% (under which two-thirds of the

applicants could receive benefits). The SEA requested the rate of 118%, knowing

that this rate would allow funding of fewer than half the applicants. The board

agreed to the SEA proposal. On April 13, 1992, the board and the SEA ratified

the revised plan.

      The revised plan did not supply a method for choosing between applicants.

Instead, it gave the board discretion to permit or limit participation in the plan.

Upon consideration of the number of applicants, the terms of the revised plan, and

the limited amount of funds, the board decided to approve benefits for the

applicants with the highest total of years in service plus years of age.

      By April 28, 1992, plaintiffs knew that their requests for early retirement

had been denied. They filed this lawsuit on November 24, 1995, and filed

charges of discrimination with the Equal Employment Opportunity Commission


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(EEOC) on January 15, 1996. The EEOC issued right-to-sue letters in February

1996.

                                   DISCUSSION

        We review a grant of summary judgment de novo. We first consider if

there is a genuine issue of material fact in dispute; if not, we then determine if the

district court correctly applied the substantive law. Clajon Prod. Corp. v. Petera,

70 F.3d 1566, 1571 (10th Cir. 1995).

        A.    THE ADEA CLAIM

        The ADEA requires a plaintiff to file an age discrimination charge with the

EEOC within 300 days after the alleged discriminatory act occurred. 29 U.S.C.

§ 626(d)(2). 2 Plaintiffs assert that their cause of action arose in March 1992,

when the board decided to delay its consideration of early retirement requests.

They admit that they filed their charges with the EEOC more than two years after

the time limitation expired, but argue that they are entitled to equitable tolling of

the statutory time limit.

        In Hulsey v. Kmart, Inc., 43 F.3d 555 (10th Cir. 1994), we summarized the

requirements for equitable tolling of ADEA time limits:




2
       The 300-day limitation applies in those states, like Wyoming, that have
statutorily prohibited discrimination. See Aronson v. Gressly, 961 F.2d 907, 910-
11 (10th Cir. 1992). Otherwise, the limit is 180 days. 29 U.S.C. § 626(d).

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             It is well settled that equitable tolling of the ADEA is
      appropriate only where the circumstances of the case rise to the level
      of active deception where a plaintiff has been lulled into inaction by
      [a] past employer, state or federal agencies, or the courts. When
      such deception is alleged on the part of an employer, the limitations
      period will not be tolled unless an employee’s failure to timely file
      results from either a deliberate design by the employer or actions that
      the employer should unmistakably have understood would cause the
      employee to delay filing [a] charge.

Id. at 557 (citations, internal ellipses and quotation marks omitted); see also

Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1269 n.2 (10th Cir. 1996)

(noting in a Title VII case that “extraordinary circumstances” are “necessary to

justify equitable tolling under established Tenth Circuit precedent.”).

      Plaintiffs in this action were not deceived, lulled into inaction, or prevented

from asserting their rights in some extraordinary way. The district’s alleged

failure to post EEOC-approved notices is insufficient reason to invoke the

doctrine of equitable tolling. Moreover, there are no other circumstances which

convince us that the time limitation should be extended for plaintiffs. The district

court correctly decided that plaintiffs’ ADEA claim was time-barred.

      Even if we considered the substance of the claim, we would affirm the

district court’s grant of summary judgment. Plaintiffs assert that the district

violated the ADEA in March 1992, when the district declined to accept their

applications for early retirement under the terms of the pre-revised plan. For

authority, they rely entirely on one clause in 29 C.F.R. § 1625.10(b), one of the


                                         -6-
regulations issued by the EEOC to implement the ADEA, as amended by the

Older Workers Benefit Protection Act. The cited clause, which states that a

discriminatory plan “must actually provide the benefits its provisions describe,”

provides no support for plaintiffs’ claim.

      It is elementary that the ADEA prohibits discrimination based on age. See

29 U.S.C. § 623(a). However, a “bona fide employee benefit plan” with

discriminatory features can be legal, see 29 U.S.C. § 623(f)(2)(B), if it is not a

“subterfuge to evade the purposes” of ADEA, see 29 C.F.R. § 1625.10(d). Thus,

an early retirement plan that provides for lower benefits to older employees on

account of age may fit within this exception if the reduced benefit amount can be

justified by significant cost considerations. See 29 C.F.R. § 1625.10(a)(1).

      The clause cited by plaintiffs is a fragment of a regulation delineating the

scope of the exception for a discriminatory, but bona fide, employee benefit plan.

The regulation does not apply to a nondiscriminatory plan. See 29 C.F.R.

§ 1625.10(c). If the plan “provides the same level of benefits to older workers as

to younger workers, there is no violation” of the general prohibition against age

discrimination, and “the practice does not have to be justified” as an exception.

29 C.F.R. § 1625.10(a)(2).

      Contrary to plaintiffs’ assertions, the regulation is not authority for the

proposition that the ADEA requires an employer to maintain a discriminatory plan


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and to provide benefits under the plan. Defendants did not discriminate against

plaintiffs on the basis of age and, accordingly, did not violate the ADEA.

      B.     THE § 1983 CLAIM

      Based on the same theory of age discrimination, plaintiffs also claim that

defendants discriminated against them in violation of 42 U.S.C. § 1983. Section

1983 itself does not create any substantive rights. It merely provides relief

against those who, acting under color of law, violate federal rights created

elsewhere. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). As the district

court correctly stated, plaintiffs have not established a violation of federal law

and, therefore, have not supported their § 1983 claim. Summary judgment was

the proper disposition of the claim.

                                  CONCLUSION

      Defendants’ motion for attorneys’ fees and costs associated with

responding to plaintiffs’ motion for a stay is denied to the extent it requests an

award of attorneys’ fees and granted to the extent it requests costs. The judgment

of the United States District Court for the District of Wyoming is AFFIRMED.



                                                     Entered for the Court


                                                     David M. Ebel
                                                     Circuit Judge


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