United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE
September 12, 2019, the Court entered its Order dismissing
Plaintiff Cynthia Fleming Chesnut's
failure-to-accommodate claim because she failed to exhaust
her administrative remedies. Doc. 45. Thereafter, Defendant
CC Services, Inc. moved for attorneys' fees allegedly
incurred (the Defendant provided no evidence of its
attorneys' fees) in securing the dismissal of
Chesnut's failure-to-accommodate claim. Doc. 50. Then, on
October 14, Chesnut moved for entry of final judgment so that
she could pursue an appeal of the Court's ruling
dismissing her failure-to-accommodate claim; she also moved
for an entry of a stay while she pursued that appeal. Doc.
51. The following day, the Court put an end to all of this,
informing the parties that it would enter an order denying
both motions and instructing the parties to “get on
with the case.” Doc. 52. This is that order.
point, the Court understands the Defendant's frustration.
As made clear in its order granting the Defendant's
motion to dismiss, few facts and no persuasive law supported
Chesnut's effort to salvage her failure-to-accommodate
claim. Doc. 45. The Court need not repeat that discussion.
But one additional point needs to be made. It appears that
Chesnut's lawyers, and, to a lesser degree, the
Defendant's lawyers, did not understand the appropriate
standard of review. All appeared to think a motion to dismiss
for failure to exhaust is subject to a Rule 12(b)(6)
Iqbal/Twombly standard of review; it is
Doc. 45 at 4 (citing Bryant v. Rich, 530 F.3d 1368,
1374-75 (11th Cir. 2008)). Nonetheless, consistent with the
appropriate standard of review, first Chesnut and then the
Defendant submitted, without objection, facts outside the
pleadings for the Court to consider. See generally
Docs. 30-1; 30-2; 31-1; 31-2; 31-3; 31-4; 31-5; 31-6; 34.
Yet, Chesnut, in support of what she apparently thought was a
critical argument, wrote in her brief that she would
(presumably when she thought the time was right) present
evidence that she told the EEOC over the telephone of the
Defendant's denial of her request for an accommodation.
Doc. 30 at 3. Of course, the appropriate time to get that
evidence in the record was when she responded to the
Defendant's motion to dismiss. She never did, although
she did provide copies of her EEOC charge and email
correspondence with her EEOC investigator. Docs. 30-1; 30-2.
As the Court noted in its Order, even had that evidence been
in the record, it would have been of no consequence. Doc. 45
at 5 n.5. But then, in her surreply to the motion to
partially dismiss, Chesnut, for the first time, takes
exception to the Court's consideration of matters outside
the pleadings notwithstanding the fact that she herself
submitted evidence and did not object to the Defendant's
evidence. Doc. 34 at 9 (citing an Eleventh Circuit case
regarding a motion to dismiss appropriately brought under the
Rule 12(b)(6) standard, not the failure-to-exhaust
standard); see also Docs. 30-1; 30-2.
Arguably, that lends support to the Defendant's belief
that Chesnut's lawyers have advanced frivolous arguments.
that said, Chesnut's arguments were not entirely
frivolous. The Court factors into this conclusion
Chesnut's pro se status during her dealings with
the EEOC and when she filed her complaint. While that does
not excuse her failure to exhaust, the Court can appreciate
her attorneys' efforts to revive a claim that might have
been preserved if Chesnut had the benefit of sound legal
advice. Moreover, as noted, the Defendant, perhaps following
the lead of Chesnut, provides no evidence to support an award
of attorneys' fees. See Duckworth v. Whisenant,
97 F.3d 1393, 1396-97 (11th Cir. 1996); Norman v. Hous.
Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th
Cir. 1988); Blum v. Stenson, 465 U.S. 886, 895
motion for entry of final judgment is not a close call. And
as the Court must say again, her argument that she exhausted
her failure-to-accommodate claim had scant factual or legal
support. Certainly, there is no basis for either a piecemeal
appeal or a stay of what the Court assumes is her stronger
claim. Neither her interests nor the interests of judicial
economy will be served by the entry of final judgment.
both motions (Docs. 50; 51) are DENIED. Once
again, the Court urges the parties to get on with the case.
 Also notable is the fact that neither
the complaint nor the amended complaint alleged facts
supporting Chesnut's conclusory allegation that she
exhausted her administrative remedies. See generally
Docs. 1; 24. Consequently, she may not have even survived a
Rule 12(b)(6) motion to dismiss. Of course, the Court would
have allowed her to again amend her complaint if she had
facts tending to show she had exhausted.
 As stated in its previous order,
“‘it is proper for a judge to consider facts
outside of the pleadings and to resolve factual disputes so
long as the factual disputes do not decide the merits and the
parties have sufficient opportunity to develop a
record'” in motions regarding exhaustion of
nonjudicial remedies with the EEOC. Tillery v. U.S.
Dep't of Homeland Sec., 402 Fed. App'x ...