FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 31, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10591

Non-Argument Calendar

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D. C. Docket No. 03-00293-CV-WDO-5

WILLIAM L. WARREN, 

Plaintiff-Appellant, 

versus 

JACK SCHWERMAN, 

SCHWERMAN TRUCKING COMPANY, 

Defendants-Appellees. 

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Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(August 31, 2005)

Before ANDERSON, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:
 This case was Warren v. The Health and Welfare Fund of the Central States Southeast 1

and Southwest Areas, 752 F. Supp. 452 (M.D. Ga. 1990).

2

Plaintiff William Warren, proceeding pro se, appeals the district court’s

grant of summary judgment in favor of defendants Jack Schwerman and

Schwerman Trucking Company, in his civil action brought pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, alleging that the defendants

discriminated against him by failing to make contributions to a pension plan in

accordance with a contract under which he worked. For the following reasons, we

affirm.

I. Background

Warren was employed by defendant Schwerman Trucking Company from

approximately November 3, 1970 through August 2, 1982. Warren was a

participant in a pension fund established pursuant to a collective bargaining

agreement entered into between a union and Schwerman Trucking Company. 

Between September 1983 and November 1984, Warren filed various claims with

the pension plan for a monthly disability benefit. After pursuing these claims

without success through the various stages of administrative review, in October

1986, Warren filed a lawsuit against the pension plan, seeking to recover the

benefits. In that case, the district court granted summary judgment in favor of the 1

pension plan, finding that “the defendant did not act in an arbitrary or capricious
3

manner in the handling of plaintiff’s application or breach any fiduciary duties it

may have owed to plaintiff.” In July 1993, Warren moved to re-open his October

1986 complaint, on the basis that he discovered new evidence that his employer,

Schwerman Trucking Company, had failed to properly contribute to the plan. The

court denied the motion. 

About ten years went by and, in September 2003, Warren filed the instant

action, again alleging that his employer improperly contributed to the plan. The

defendants answered and moved for judgment on the pleadings under Fed.R.Civ.P.

12(c), or alternatively, for summary judgment. Because Warren filed documents

outside of the pleadings, the court converted the motion to dismiss into one for

summary judgment and notified the parties. Subsequently, the district court

granted summary judgment in favor of the defendants. Warren now appeals. 

II. Standard of Review

We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the party opposing the motion. Wilson

v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment

is appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a
 Notably, the complaint form that Warren used to file his lawsuit enabled him to identify 2

whether his claim was based on discrimination on account of race, religion, sex, and/or national

origin. Warren did not select any of these categories. Even if we were to assume that his

complaint sufficiently alleged a discrimination claim, his Title VII claim fails for another reason;

he did not exhaust his administrative remedies. As a prerequisite to filing a Title VII suit, an

employee must file a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) within the statutory time period. 42 U.S.C. § 2000e-5(b),(f); Wilkerson

v. Grinell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001). Warren failed to do so, thus barring any

Title VII claim he may have had. See Wilkerson, 270 F.3d at 1317. 

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judgment as a matter of law.” Fed. R. Civ. P. 56(c); Eberhardt v. Waters, 901 F.2d

1578, 1580 (11th Cir. 1990). 

III. Discussion

Warren offers little argument explaining how the district court erred, but we

are mindful of his pro se status and, therefore, we address the merits of his claims. 

In doing so, we conclude that, for several reasons, summary judgment was proper

in this case. First, Warren brought this action pursuant to Title VII, but he fails to

allege that he was discriminated against on the basis of his membership in a

protected class. Title VII provides redress for employment discrimination based on

race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2; see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-02 (1973). Warren does

not, however, allege discrimination based on race, color, religion, sex, or national

origin. Thus, he fails to sufficiently allege a discrimination claim. 

2

Although Warren filed his claim under Title VII, his argument really

involves an alleged breach of contract claim in which he contends that the
 His complaint states that the defendants “failed to make contributions based on the 3

contract that my duties fell under.”

5

defendants failed to pay into the pension as required by the contract. Any breach 3

of contract claim that Warren may have, however, is preempted by the

Employment Retirement Income Security Act, 29 U.S.C. § 1001 (“ERISA”). 29

U.S.C. § 1144(a); Hobbs v. Blue Cross Blue Shield of Alabama, 276 F.3d 1236,

1240 (11th Cir. 2001); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52-54

(1987). 

Therefore, Warren’s only appropriate avenue of relief was to seek benefits

due under the plan pursuant to ERISA. The problem for Warren is that any ERISA

claim he may have had is now barred by the statute of limitations. In an ERISA

action, we apply the limitations period from the state in which the action is

brought. Harrison v. Digital Health Plan, 183 F.3d 1235, 1238 (11th Cir. 1999). 

Because this action was brought in Georgia, the applicable statute of limitations is

six years. Id. at 1241; O.C.G.A. § 9-3-24. In addition, a cause of action accrues

when the plaintiff knew or should have known of the injury. Bowling v. Founders

Title Co., 773 F.2d 1175, 1178 (11th Cir. 1985). At the latest, Warren knew about

his injury in July 1993. At that time, Warren requested that the district court reopen his earlier case because he believed he had additional evidence that

“Schwerman Trucking Co. had not paid into the fund....” Warren, however, did
6

not file the instant action until September 2003. Thus, Warren’s ERISA claim was

untimely, as he failed to file his complaint within the six-year statute of limitations. 

Finally, Warren argues that the district court erred in granting summary

judgment because it addressed the wrong issue. He asserts that the district court

should have determined whether the contract for pension benefits was legally

binding. Because he did not challenge the validity of the contract in the district

court, we decline to address this issue on appeal. See Access Now, Inc. v.

Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (stating general rule

that we do not consider issues raised for the first time on appeal).

For the foregoing reasons, we AFFIRM the district court’s grant of summary

judgment in favor of the defendants.

AFFIRMED.