1 Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-50857

Summary Calendar

___________________________

LISA HOLGUIN,

Plaintiff-Appellant,

VERSUS

UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, MICHAEL P.W.

STONE, Secretary of the Army, RAYMOND FOX, SFC, JIM TRABUE, TERRY

SCOTT, Colonel, HUGH A. MCPHERSON,

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

For the Western District of Texas

(EP-93-CV-486)

____________________________________________________

September 5, 1996

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:1

Lisa Holguin appeals on procedural grounds from the district

court’s dismissal of her action. She claims that the court abused

its discretion by considering information outside the pleadings

when it granted Appellees’ motion to dismiss for failure to state

a claim, by denying her motion for a continuance, by refusing to

exercise pendent jurisdiction over her state law claims, and by

dismissing some of her claims against one defendant based upon an
2

untimely motion. We affirm. 

I.

 Holguin is a civilian employee of the Department of the

Army. She alleges that Appellee SFC Raymond Fox “undertook a

persistent course” of sexual harassment against her by continually

calling her, stalking her, and sending her “love” letters.

Appellant further claims she told her supervisor, Appellee Jim

Trabue, about Fox’s conduct only because he promised to keep the

information confidential. Trabue nonetheless reported her

allegations to Appellee Colonel Scott. Scott, in turn, questioned

Raymond Fox about the matter. Holguin’s complaint states that

“immediately thereafter,” she suffered “job displacement, reprisal,

and retaliation at the hands of” another supervisor, Appellee

McPherson.

Appellant first contacted an EEO counselor to initiate an

informal complaint on January 13, 1992. Her last interview took

place on February 4. At that time, she was told of her right to

file a formal complaint within fifteen days. Holguin did not file

one until November. On November 23, 1992, Holguin, through her

attorney, received notice that her EEO complaint had been dismissed

as untimely and that she had a right to file a federal court action

within 90 days. She did not file suit until January 19, 1994,

almost eleven months past the deadline. 

Holguin’s complaint listed a variety of federal and state
 

2 This motion was filed by the United States attorney on

behalf of the United States, the Department of the Army, Michael

P.W. Stone, Secretary of the Army, Jim Trabue, Colonel Terry Scott,

and Major McPherson. Raymond Fox was represented by private

counsel. Fox moved to join the other appellees’ motion to dismiss.

The district court denied Fox’s motion as untimely. Fox later

filed his own motion to dismiss. This motion was granted in part

by the district court.

 

3 These documents were (1) Notice of final EEO interview

dated February 4, 1992 and signed by Holguin; (2) Withdrawal of EEO

complaint dated February 1992 and signed by Holguin; (3) November

17, 1992 Notice of dismissal of Holguin’s formal EEO complaint as

untimely, with copy of mail certification attached; (4) Affidavit

of EEO officer Pete Medina as keeper of records; and (5)

Declaration of Russell Fontenot stating that a search of the

administrative record in the Staff Judge Advocate office revealed

no Federal Torts Claim Act claims filed by Holguin.

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claims. In November of 1994, Appellees2 moved for dismissal of all

claims for failure to exhaust administrative remedies, lack of

subject matter jurisdiction, and failure to state a claim. To this

motion Appellees attached five documents as evidence of Holguin’s

untimeliness and failure to exhaust administrative remedies.3

Holguin never responded to the motion to dismiss. Four months

after it had been filed, the court heard oral argument on the

motion.

The district court granted Appellees’ motion. Because Holguin

had neither filed her federal suit within the allotted time nor

exhausted her administrative remedies under Title VII, the court

determined that it lacked jurisdiction over her federal sex

discrimination claims. In a May 16, 1995 Memorandum Opinion and

Order, it also dismissed Appellant’s Federal Tort Claims Act claims

against the United States and against West, Trabue, Scott,
4

McPherson, and Fox, in their official capacities for her failure to

exhaust administrative remedies.

After obtaining one continuance, Appellant answered. On July

31, 1995, the district court determined to “retain jurisdiction

over the pendent state law claims.” It ordered the parties to

submit a joint pretrial stipulation on October 16, and it set trial

for October 23. On October 12, 1995, however, the district court

“reconsidered” its Memorandum Opinion and Order of May 16 and

“clarif[ied]” that the only claims remaining for trial were the

state law claims against Fox in his individual capacity. Holguin’s

claims against the United States, West, Trabue, Scott, and

McPherson, in their individual capacities, were dismissed.

Appellant immediately filed a motion for a continuance. She argued

that dismissing the remaining defendants four days before the

deadline for the pretrial order and eleven days prior to trial

unduly prejudiced her. The district court denied the motion.

Holguin and Fox settled. She filed this appeal. 

II.

Holguin argues that the district court erred in dismissing

pendant state claims. We have reviewed the record and find that

the district court did not abuse its discretion in dismissing the

state claims after it dismissed the federal claims.

Holguin also argues that the district court erred in treating

appellees' motion to dismiss as one for summary judgment and then

dismissing her federal claims as untimely and for failure to

exhaust administrative remedies. Although appellees characterized
 

4 We likewise reject Holguin’s argument that the documents

submitted by Appellees were not competent summary judgment

evidence. 

5

their motion as one to dismiss, they included several documents

with this motion, and the district court considered the attachments

in determining to dismiss Holguin’s claims. Holguin is correct,

therefore, when she argues that the 12(b)(6) motion was converted

to a motion for summary judgment. This fact alone, however, does

not require us to reverse the district court. A court may convert

a Rule 12(b)(6) motion into a motion for summary judgment, and it

need not advise either party of its intention to do so. E.g.,

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.

1990). The only requirement is that the non-moving party have at

least ten days in which to submit its own evidence. Id. This

period begins running when the non-movant is first put on notice

that, based on its acceptance of evidence outside the pleadings,

the court could convert the Rule 12(b)(6) motion into a summary

judgment. Id. The record demonstrates that the attachments were

served on Holguin, that she knew the court was relying on them, and

that she was aware the 12(b)(6) motion was thereby converted to a

summary judgment. Her remedy was to move for permission to file

her own summary judgment evidence or to challenge the evidence

proffered by the Appellees.4 Despite having ample time to do so,

Holguin did neither. The district court did not err in granting

appellees' motion. 

III.
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For the reasons stated above, we find Appellant’s arguments

meritless and affirm the district court.

AFFIRMED.