                                                                       [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                                No. 99-14741               ELEVENTH CIRCUIT
                                                               NOV 09, 2000
                          ________________________
                                                            THOMAS K. KAHN
                                                                 CLERK
                       D. C. Docket No. 99-01383-CV-J-S

VALDA STEWART,

                                                          Plaintiff-Appellant,


                                      versus


BOOKER T. WASHINGTON INSURANCE,
BOOKER T. WASHINGTON BROADCASTING COMPANY,

                                                          Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________
                               (November 9, 2000)

Before CARNES, MARCUS and FARRIS*, Circuit Judges.

MARCUS, Circuit Judge:


      *
       Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
      This appeal is from an order of summary judgment for the Defendants,

Booker T. Washington Insurance Company (“Insurance”) and Booker T.

Washington Broadcasting Company (“Broadcasting”), in a suit brought by Valda

Stewart for alleged violations of Title VII. In essence, Stewart claimed that the

Defendants, her former employers, discriminated against her by transferring,

terminating, and failing to rehire her on account of her sex and in retaliation for

having filed a previous charge with the Equal Employment Opportunity

Commission (the “EEOC”).

      The district court grounded summary judgment on the conclusion that

Stewart did not file a charge with the EEOC within 180 days of the alleged

unlawful practices, as required by 42 U.S.C. §2000e-5(e)(1). After thorough

review, we reverse as to Stewart’s termination and failure to rehire claims because

the charge filing period for a retaliatory discharge claim does not begin to run until

a plaintiff receives notice of termination, and on this record there is a genuine issue

of material fact as to whether Stewart received such notice more than 180 days

before she filed. However, we affirm summary judgment as to Stewart’s transfer

claim because she failed to file an EEOC charge within the statutorily prescribed

period following the alleged retaliatory transfer.


                                           2
                                                 I.

       The facts and procedural history of this case are relatively straightforward.

Valda Stewart was hired by Insurance as an accountant in 1990. Approximately

nine months later, she was informed by Kirkwood Balton, the president of

Insurance, Broadcasting, and the A.G. Gaston Construction Company

(“Construction”) that she would be doing the accounting work for Broadcasting

and Construction, subsidiaries of Insurance. Stewart became Broadcasting’s Vice

President of Accounting and also an officer at Construction.1

       On April 24, 1996, Stewart filed her first charge of discrimination with the

EEOC, naming Broadcasting as her employer and alleging that she was being

sexually harassed by her supervisor, Barry Williams, and discriminated against on

the basis of her sex. Stewart alleges that she was then told in May 1996 that, due

to her pending EEOC charge and the related investigation, she was being

transferred to exclusively Broadcasting duties but that she would be reassigned to

both Broadcasting and Construction when the investigation was completed. On


       1
      In its submissions to the FCC, Broadcasting represented that it had two parent
companies, Insurance and A.G. Gaston Corporation. Broadcasting is listed as
Stewart’s employer on her 1993-1997 W-2 forms. Insurance argued to the district court that
it was not Stewart’s employer or joint employer for Title VII purposes. Stewart said that
Broadcasting was really a division of Insurance or that the two companies may be considered as a
joint employer for purposes of Title VII actions. The district court did not reach this issue because
it granted summary judgment to the Defendants on other grounds.

                                                 3
July 2, 1997, Stewart received a dismissal and a right to sue letter from the EEOC.

She did not file suit within 90 days of that right to sue letter.

      Stewart remained at Broadcasting until she was terminated on November 21,

1997. The parties disagree about when Stewart received notice of her termination.

The Defendants argue, and the district court agreed, that Stewart received notice of

her termination in May 1997 when she learned Broadcasting’s primary assets (two

radio stations) were going to be sold, at which time all employees of that division

would be terminated. Kirkwood Balton, the president of both defendant

corporations, testified that after the asset purchase agreement was executed on May

12, 1997, he held a meeting with all the employees of Broadcasting, at which

meeting:

      we told them that we had entered into an agreement to sell the radio
      station and that we were concerned about the employment of all of our
      people, and we were concerned about the continued operation of our
      broadcast service until- until it was- the sale brought to closure, and
      we told all of our employees that we would help them with
      employment, try to hire them, or if they stayed on with us until the
      end, until the end of the sale, that we would pay them four months’
      severance pay.

He also testified that all of Broadcasting’s employees were terminated following

the sale of the radio stations, except for one employee who was retained to oversee

the operations of Broadcasting’s remaining asset.



                                            4
      According to Stewart, she first learned that she was going to be terminated

in November 1997. Stewart stated in an affidavit that during the summer and fall

of 1997, after Broadcasting announced that its radio stations would be sold, many

Broadcasting employees were offered interviews with the company that had agreed

to purchase the radio stations. She believed she was not offered an interview

because “Mr. Balton had in mind for me to continue working for the A.G. Gaston

affiliated companies, including the Construction, Cemetery, Public Relations, and

Insurance companies, following the sale of the stations.” She also stated that,

      Prior to November 1997, neither Mr. Balton nor any other officer or
      employee under Balton’s direction told me or indicated in any way
      that I was to be terminated as a result of the sale of [the radio
      stations]. Since the Broadcasting Service remained in existence after
      the sale as did the numerous other affiliated companies of A.G.
      Gaston, I had no reason to believe that I would not be retained to
      perform services for the other affiliated companies as Mr. Balton had
      told me in May 1996 and as I had done throughout my employment
      since October 1990. It was not until early November 1997 that I had
      any indication that I may be terminated.

Stewart said that she had an exit interview on November 3, 1997 and she was told

that her termination date, if any, was uncertain. According to Stewart, she was told

on November 20, 1997 that she was being terminated and her last day of work was

November 21, 1997.

      On January 8, 1998, Stewart sent a letter and a resume to Insurance. She

stated that she was interested in working for that company. She was not hired.

                                         5
       On February 13, 1998, Stewart filed a second charge of discrimination with

the EEOC, naming Insurance as her employer and claiming that since the filing of

the April 1996 charge she had been subject to retaliation and discriminated against

as shown through a transfer and then her termination. She also alleged that she had

been transferred from her duties in the Defendants’ “construction, broadcasting,

cemetery, and public relations division to solely the broadcasting division, and was

told at the time of her transfer that such action was for the time during which the

investigation of her EEOC was pending, and that she would be reinstated to her

full duties after such investigation was completed.” On June 8, 1998, she filed a

third charge with the EEOC against Broadcasting alleging the identical grounds

stated in her February 1998 charge.

      On May 27, 1999, Stewart filed suit against Insurance and Broadcasting

alleging sex discrimination and retaliation in violation of Title VII. Her complaint

charged that the two Defendants were one enterprise and her joint employer. Both

Defendants filed motions to dismiss, arguing that Stewart did not file an EEOC

charge within 180 days of when she received notice of her termination. The

district court converted the motions to dismiss into motions for summary judgment.

After discovery was conducted, the district court granted summary judgment in

favor of the Defendants, finding that Stewart had received notice of her termination


                                          6
in May 1997 but failed to file a charge with the EEOC within the statutory period

following that notice.



                                           II.

      We review a district court’s order granting summary judgment de novo,

applying the same standards as the district court. See Hairston v. Gainesville Sun

Pub. Co., 9 F.3d 913, 918 (11th Cir. 1993). Summary judgment is authorized

when all “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 judgment as a matter of

law.” Fed. R. Civ. P. 56(c). In assessing whether there is any “genuine issue” for

trial, the court “must view all the evidence and all factual inferences reasonably

drawn from the evidence in the light most favorable to the nonmoving party,”

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th

Cir.1997), and “resolve all reasonable doubts about the facts in favor of the

non-movant.” United of Omaha Life Ins. v. Sun Life Ins. Co., 894 F.2d 1555, 1558

(11th Cir.1990). Moreover, the court must avoid weighing conflicting evidence or

making credibility determinations. Damon v. Fleming Supermarkets of Florida,

Inc., 196 F.3d 1354, 1361 (11th Cir. 1999), cert. denied __ U.S. __, 120 S.Ct.


                                           7
1962, 146 L.Ed. 2d 793 (2000). Instead, “‘[t]he evidence of the non-movant is to

be believed, and all justifiable inferences are to be drawn in his favor.’” Hairston,

9 F.3d at 918 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).



                                         III.

      We conclude that the district court erred in determining that Stewart’s EEOC

charge of discriminatory and retaliatory termination was untimely filed and

therefore also erred in granting summary judgment to the Defendants. The

Defendants did not present any clear evidence that the decision to terminate

Stewart was made or communicated to her before November 20, 1997. Moreover,

the district court improperly discredited Stewart’s testimony that she was never

told before November 20, 1997 that she was or would be terminated. Since the

charge filing period on a termination claim does not begin to run until an employee

is told that she is actually being terminated (not that she might be terminated if

future contingencies occur) and Stewart filed a charge with the EEOC within 180

days of November 20, 1997, the district court erred in granting summary judgment

to the Defendants.

      Title VII requires a plaintiff to file a charge with the EEOC no more than

180 days after “the alleged unlawful employment practice occurred.” 42 U.S.C.


                                           8
§2000e-5(e) (1). Counting 180 days backward from Stewart’s February 13, 1998

charge, we find that the charge was timely as to any allegedly discriminatory act

that occurred on or after August 17, 1997.2

      According to the district court, Stewart received notice in May 1997 that she

was to be terminated and this was the date on which the 180-day filing period

began to run. In making this finding, the district court relied on the deposition

testimony of Kirkwood Balton, the president of both defendant corporations.

Contrary to the district court’s finding, this deposition testimony does not establish

that the Defendants informed Stewart she would be terminated. Balton testified

that he told all of the employees that they “had entered into an agreement to sell

the radio station,” that they “were concerned about the employment” their

employees, and that they “would help them with employment, try to hire them, or

... pay them four months’ severance pay.” Rather than establishing that the

Broadcasting employees, presumably including Stewart, were unconditionally told

in May 1997 that they would be terminated, Balton’s testimony suggests only that



      2
       Because Stewart alleges that the June 1998 charge, naming Broadcasting as her
employer, was intended as an amendment to her February 1998 charge naming
Insurance as her employer and that the two Defendants can be considered as a “joint”
employer for the purposes of Title VII, the Court will examine the case in light of the
February 1998 charge. Since the district court did not reach the question, we express
no opinion on Stewart’s joint employer allegation.
                                          9
the employees were told at a general meeting that the Defendants were concerned

that the employees’ jobs may be in danger but that nothing was definite yet and

that the Defendants would try to help them with employment or rehire them.

Although Stewart may have had reason, based on this May 1997 meeting, to

suspect that she might be terminated as a result of the agreed-upon sale of

Broadcasting, if the sale closed, this was not enough to start the charge filing

period running. Quite simply, the 180-day charge filing period does not run until

the plaintiff is told that she is actually being terminated, not that she might be

terminated if future contingencies occur. See Grayson v. K Mart Corp., 79 F.3d

1086, 1100 n.19 (11th Cir. 1996) (noting that the EEOC charge filing period does

not begin to run until the employee receives “unequivocal notice of the adverse

employment decision.”); Pearson v. Macon-Bibb County Hosp., 952 F.2d 1274,

1279-80 (11th Cir. 1992) (holding that trial was necessary to determine the

availability of equitable tolling when an employee was told she could resign, apply

for a transfer or, if she refused those options, be terminated); Cocke v. Merrill

Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987) (holding that the charge filing

period was equitably tolled when the employee’s notice of termination stated that

the employer was pursuing positions for the employee within the company “until

such time as it is or should be apparent to an employee with a reasonably prudent


                                           10
regard for his rights that the employer has ceased to actively pursue such a

position.”); see also Ricks, 449 U.S. at 258 (“[T]he only alleged discrimination

occurred–and the filing limitations periods therefore commenced–at the time the

tenure decision was made and communicated to Ricks.”). Beginning the charge-

filing period any earlier would make little sense: to require a plaintiff to file a

discriminatory termination charge with the EEOC prior to the receipt of notice of

termination would be to require a filing prior to the occurrence of the

discriminatory conduct, thereby charging the EEOC with responsibility for the

arguably advisory task of investigating a hypothetical case of discrimination.

      Moreover, although Stewart stated in an affidavit that “[p]rior to November

1997, neither Mr. Balton nor any other officer or employee under Balton’s

direction told me or indicated in any way that I was to be terminated as a result of

the sale,” and that “I had no reason to believe that I would not be retained to

perform services for the other affiliated companies as Mr. Balton had told me in

May 1996,” the district court disregarded this evidence, finding that it “flies in the

face of credibility.”

      In finding that Stewart was notified of her termination in May 1997 when

she was told that Broadcasting was going to be sold, the district court improperly

discredited her testimony that she was never told she was or would be terminated


                                           11
until November 1997, in plain violation of Rule 56(c). In evaluating a motion for

summary judgment under Rule 56(c), “‘[t]he evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in his favor.’” Hairston, 9

F.3d at 918 (quoting Anderson v. Liberty Lobby, 477 U.S. at 255). Moreover, the

court must avoid weighing conflicting evidence or making credibility

determinations. See Damon, 196 F.3d at 1361. Accordingly, the district court

erred in disregarding the Stewart’s affidavit testimony based on a credibility

determination.

      Accepting Stewart’s affidavit testimony as true, as we must under Rule

56(c), it is clear that her testimony raised a genuine issue of material fact as to

whether she was notified of her termination more than 180 days prior to the filing

of her second charge of discrimination with the EEOC. The existence of this issue

alone would preclude summary judgment on Stewart’s discriminatory and

retaliatory termination claim.

      Because the evidence presented by both the plaintiff and the defendants

raises a genuine issue as to whether the plaintiff received notice of her termination




                                           12
more than 180 days before she filed her EEOC charge, we hold that the district

court erred in finding that the EEOC charge was untimely.3



                                          IV.

      We conclude, however, that the district court did not err in dismissing

Stewart’s transfer claim as untimely. Assuming that Stewart is alleging that her

transfer to exclusively Broadcasting duties was a discriminatory act separate from

her termination, we agree with the district court that the EEOC charge as to her

transfer claim was not timely. Stewart alleges in her complaint that she was told in

May 1996, after the Defendants were aware of her complaints of discrimination

and her filing an April 1996 EEOC charge, that she was being transferred

immediately to exclusively Broadcasting duties. She alleges further that she was

told at that time that the transfer was for the period of the investigation of her


      3
        We also find that the failure to rehire claim was timely filed and reverse the
district court’s grant of summary judgment to the Defendants on that claim. Stewart
alleged that she applied to the Defendants following the sale of Broadcasting and that
the Defendants’ failure to rehire her was for pretexual reasons and in retaliation for
her opposition to illegal sex discrimination. Citing Burnam v.Amoco Container Co.,
755 F.2d 893 (11th Cir. 1985), the district court found that the claim was untimely
because a failure to rehire subsequent to an allegedly discriminatory firing cannot
resurrect the old discrimination claim. Because the original termination claim was not
untimely and the failure to rehire claim is not being used to resurrect an untimely
termination claim, the district court erred in granting summary judgment to the
Defendants on the failure to rehire claim.
                                           13
EEOC charge, and that she would be transferred back to her former position when

the investigation was finished. Stewart also states that in July 1997, when the

investigation of her April 1996 charge was complete, the Defendants refused to

transfer her back to her former position. Based on these facts, Stewart knew in

May 1996 that she was being transferred because she filed an EEOC charge and

she also knew no later than July 1997 that, although the investigation was

complete, she was not being transferred back. Because Stewart waited to file an

EEOC charge until February 1998, more than 180 days after she knew that she had

been transferred and would not be transferred back, we find that Stewart’s claim

that she was transferred on the basis of her sex and in retaliation for filing a charge

with the EEOC was untimely.

      Stewart argues, nevertheless, that the transfer claim was timely filed because

it was part of a continuing violation that included her November 1997 termination

and the Defendants’ refusal to rehire her in 1998. She alleges that the transfer and

the termination were both part of a unified plan to terminate her employment. But

the only thing supporting the existence of such a plan, however, is the conclusory

allegation in her complaint that “[u]pon information and belief, in May 1996 when

defendants transferred the plaintiff following the filing of her EEOC charge, the

defendants knew that the broadcasting division was going to be sold.” (Complaint,


                                          14
¶ 23.) This bare and self-serving allegation where she had no personal knowledge

is inadequate to carry Stewart’s burden on summary judgement. In fact, the only

evidence on this point which could be considered under Rule 56(e) is Balton’s

deposition testimony (submitted by Stewart) that discussions regarding the sale of

the radio stations first started in early 1997, long after the May 1996 transfer and

directly contrary to Stewart’s allegation. Simply put, the district court did not err

in granting summary judgment for the Defendants on Stewart’s discriminatory and

retaliatory transfer claim.4



      Accordingly, we AFFIRM the district court’s grant of summary judgment

with respect to Stewart’s transfer claim, REVERSE the district’s court’s grant of




      4
         Stewart also argues that the district court failed to give her the ten days
required by Rules 12(b) and 56 between the conversion of motions to dismiss under
Rule 12(b)(6) to motions for summary judgment under Rule 56. This argument is
without merit. Almost two months prior to the hearing on the motions Stewart
successfully argued that, “by attaching additional evidence to its motion to dismiss,
defendant Insurance Company has ‘presented matters outside the pleadings,’ and as
such has converted its motion to one for summary judgment” and obtained a discovery
order on matters including whether her EEOC charge was untimely filed. Three
weeks prior to the hearing, Stewart argued for and received an order compelling
discovery from Broadcasting on those same matters, over Broadcasting’s objection
that its motion had not gone beyond the pleadings.
                                          15
summary judgment with respect to Stewart’s termination and failure to rehire

claims, and REMAND for further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                        16
FARRIS, Circuit Judge, dissenting:

      The trial court fully considered the record and properly applied the law in

granting summary judgment. I would affirm.

                                 BACKGROUND

      Prior to May, 1996, Valda Stewart worked for Booker T. Washington

Insurance Company as a Controller, performing accounting and auditing duties for

the construction, broadcasting, cemetery, and public relations divisions. On April

24, 1996, Stewart filed a charge of discrimination with the EEOC. She alleged that

she was subjected to sexual harassment by her supervisor, Barry Williams. In

May, 1996, Stewart was transferred from her duties as a Controller to a position at

the subsidiary, Booker T. Washington Broadcasting Service, Inc. Stewart alleges

that at the time of her transfer, she was told by the president of both companies,

Kirkwood Balton, that the transfer was effective for the period of the investigation

of her EEOC charge and that she would be transferred back following

determination of the investigation. On July 2, 1997, the EEOC completed the

investigation and issued Stewart a “right to sue” letter. Stewart was not transferred

back to her previous position. On November 21, 1997, following the sale of the

Booker T. Washington Broadcasting department, Stewart along with all the other

employees were terminated.


                                         17
      On February 18, 1998, Stewart filed another charge of discrimination with

the EEOC. This charge was based on sex discrimination and retaliation. Stewart

alleged that defendants retaliated against her for filing the EEOC charge by

transferring her to Broadcasting when management had knowledge that the

company would be sold.

      On May 27, 1999, Stewart filed a complaint in district court for sex

discrimination and retaliation. On October 29, 1999, the district court converted

the defendants’ motion to dismiss and entered summary judgment for the

defendants. The district court concluded that Stewart’s February 18, 1998, EEOC

charge was untimely because it was more than 180 days after the alleged

discriminatory act.

                                  DISCUSSION

I     Standard of Review

      The grant of summary judgment is reviewed de novo. See Hairston v.

Gainesville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993).

      The trial court’s determination on equitable tolling is reviewed for clear

error. See Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993).



II    Equitable Tolling


                                         18
      The defendants contend that the February 18, 1998, EEOC charge is

untimely because it was not filed within 180 days of either Stewart’s May, 1996

transfer, or, alternatively, July 2, 1997, the date she received her “right to sue”

letter from the EEOC. Stewart contends that equitable tolling applies because after

she was told she would be transferred back after the investigation of her EEOC

charge, she was terminated on November 21, 1997.

      In order for equitable tolling to be appropriate, the facts must show that, in

the period more than 180 days prior to filing her EEOC charge, Stewart had no

reason to believe that she was the victim of unlawful discrimination. See id.

Equitable tolling is not appropriate when the plaintiff suspects that she may been

discriminated against and is generally aware of her legal right to obtain redress.

See id.

      The discriminatory act, here the transfer, which occurred in May, 1996,

should have triggered the filing of the EEOC charge for retaliation. The pain that

arises from the discriminatory act, the ultimate termination, is of no consequence.

See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (period commenced

at time the decision was made and communicated to the plaintiff, even though one

of the effects of the decision, the eventual loss of employment, did not occur until

later). Stewart’s February 18, 1998, EEOC charge stated that she was told that the


                                           19
transfer was because her EEOC charge was pending. Stewart also stated that she

believed that at the time she was transferred, the defendants had formed the intent

to sell the division, and that she believed her job would be eliminated. This

illustrates that Stewart believed that she was the victim of discrimination because

her employer’s reasons for her transfer were pretextual. Stewart was also well

aware of her legal rights to seek redress because she had already filed an EEOC

charge in 1996.

      Stewart’s charge is untimely on other grounds. The district court counted

back 180 days from the filing of the February 18, 1998, EEOC charge to August

17, 1997. Thus, Stewart would have to allege that she was unaware that she was

the victim of discrimination prior to August 17, 1997. On July 2, 1997, the EEOC

completed its investigation and issued Stewart a “right to sue” letter. Stewart was

not transferred back to her previous position. At that time, Stewart could

determine whether she had been, or was going to be reinstated. Moreover, on May

12, 1997, company president Balton held a meeting with all the employees of

Broadcasting including Stewart and informed them that the company was being

sold. No employee was given affirmative guarantees that they would be rehired

after the sale (id.). Also, Balton’s statement clearly indicated that whoever stayed

at the company until the sale closed would be terminated and receive four months


                                         20
of severance pay (id.). Stewart could have determined that she was the victim of

discrimination well before August 17, 1997.

III   Continuing Violation

      Stewart contends that defendant’s conduct constituted a continuing violation

by (1) transferring her, (2) refusing to transfer her back to her previous duties, and

(3) refusing to rehire her after termination.

      Where an employee claims that an employer continuously maintained an

illegal employment practice, she may file a valid charge of discrimination until 180

days after the last occurrence of discriminatory practice. See Ross, 980 F.2d at

658. Where an employer engages in a discrete act of discrimination that continues

to adversely affect an employee, or where the employer refuses to rectify the past

violation is not a continuing violation. See id. An employer’s refusal to undo a

prior discriminatory act is not, in itself, a new act of discrimination. See Everett v.

Cobb County School Dist., 138 F.3d 1407 (11th Cir. 1998) (citing Lever v.

Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992)).

      In this case, the discriminatory act of retaliation was Stewart’s 1996 transfer.

Stewart claimed that this transfer was because of her filing an EEOC charge, and

that she believed she would be terminated. Although Stewart was adversely

affected by this transfer when she was not transferred back, and when she was


                                           21
ultimately terminated, this is not a pattern of discrimination. The company’s

refusal to rectify the past discriminatory act and return Stewart to her previous

duties does not constitute a continuing violation. See id.

IV    Rehiring Claim

      Stewart contends that the defendants’ failure to rehire her constituted sex

discrimination. Stewart cites Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 763-

64 (11th Cir. 1995), for the proposition that a plaintiff can challenge a failure to

rehire after a discriminatory termination whenever the failure stems from a new act

of discrimination. In Hargett, however, the Eleventh Circuit held that rehire

claims in that case were time-barred. Here, Stewart’s retaliatory rehire claim is

based on her 1996 EEOC charge and is also time-barred. See id. Moreover, this

claim should be rejected because Stewart fails to allege a prima facie case of sex

discrimination. Nearly all of the people identified as being rehired are women.

See McDonald Douglas v. Green, 411 U.S. 792 (1973).

V     Conversion to Summary Judgment

      Stewart contends that she was not given adequate notice that the defendants’

motion to dismiss would be converted to one for summary judgment. Rule 12(b)

provides that when matters outside the pleadings are presented, a motion to dismiss




                                          22
shall be treated as a motion for summary judgment. However, a party must be

given ten days notice that the motion is being converted.

      Stewart’s contention fails because she was the one who requested discovery

on the motions to dismiss and was aware that the judge would convert the motion.

On August 10, 1999, Stewart introduced matters outside the pleading by filing an

Affidavit attached to her response to defendant’s motion to dismiss. On August

31, 1999, Stewart filed a motion to continue the hearing on defendant’s motion to

dismiss and to permit discovery. The district court granted the motion of

September 1, 1999. Stewart submitted the entire deposition testimony of company

president Balton. The defendants also submitted portions of the same deposition.

      On October 25, 1999, Stewart filed an opposition to defendant’s motion and

specifically recognized that documents taken outside the pleadings would convert

the motion to dismiss to a motion for summary judgment. Although Stewart did

not receive ten days notice, summary judgment was appropriate. All of the parties

were aware that the judge was converting the 12(b)(6) motion and the parties made

all the arguments and submitted all the documents they would have presented had

they received notice See Property Management & Investment v. Lewis, 752 F.2d

599, 605 (11th Cir. 1985) (notice failure was not reversible error). The district




                                         23
court judge carefully considered matters outside the pleadings submitted by both

parties and correctly entered summary judgment.

                                  CONCLUSION

      Because Stewart had reason to believe that she was the victim of unlawful

discrimination more than 180 days before filing the 1998 EEOC charge, the district

court’s determination that equitable tolling was inapplicable was not clearly

erroneous. The alleged discriminatory act of retaliation occurred during the 1996

transfer and the subsequent events do not constitute a continuing violation.

Stewart cannot make out a prima facie case for her rehire claim. Because Stewart

presented evidence outside the pleadings, the district court correctly converted the

motion to dismiss to a motion for summary judgment.

      I respectfully dissent. I would affirm.




                                         24
