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.
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 discrimina*852tion 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
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, 101 S.Ct. 498, 66 L.Ed.2d 431 (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 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 of severance pay (id.). Stewart could have determined that she was the victim of discrimination well before August 17,1997.
IllContinuing Violation
Stewart contends that defendant’s conduct constituted a continuing violation by *853(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 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 ease 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 McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 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 Bal-ton. 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 & Investments v. Lewis, 752 F.2d 599, 605 (11th Cir.1985) (notice failure was not reversible error). The district court judge *854carefully 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.