                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
_______________________________
                                )
WILLIAM KRUGER,                 )
                                )
          Plaintiff,            )
                                )
     v.                         ) Civ. Action No. 14-1744 (EGS)
                                )
COGENT COMMUNICATIONS, INC.,    )
                                )
          Defendant.            )
                                )


                       MEMORANDUM OPINION

     Plaintiff William Kruger (“Mr. Kruger”) brings this action

against Cogent Communications, Inc. (“Cogent”) alleging

discrimination on the basis of religion, national origin, and

hostile work environment in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. Am. Compl., Docket

No. 10-1. Cogent moves to dismiss, Def.’s Mot. Dismiss (“Def.’s

Mot.”), Docket No. 5, and Mr. Kruger moves for leave to file an

amended complaint, Pl.’s Mot. Amend (“Pl.’s Mot.”), Docket No.

10. Upon consideration of the parties’ motions, the responses

and replies thereto, the entire record, and the applicable law,

Mr. Kruger’s motion for leave to file an amended complaint is

GRANTED, and Cogent’s motion to dismiss is DENIED. 1 That portion


1 Cogent’s motion to dismiss was filed before Mr. Kruger’s motion
for leave to file an amended complaint. However, Cogent’s motion
to dismiss did not become ripe until after Mr. Kruger had filed
his motion to amend, including his proposed amended complaint.
of Cogent’s motion to dismiss that is converted to a motion for

summary judgment is DENIED without prejudice.

  I.     BACKGROUND

       Mr. Kruger is a white male of Hispanic (Peruvian) origin

whose last name is of German national origin. Am. Compl., ¶ 4.

Mr. Kruger is also a Christian. Id. In 2000, Mr. Kruger was

hired by Cogent as Director of Service Delivery. Id. Mr. Kruger

alleges that despite performing well at his job and receiving

frequent praise for his performance, he received less

compensation and fewer bonuses than his similarly-situated

coworkers of different national origins and/or religions. Id. ¶

13. Mr. Kruger alleges that he was inappropriately excluded from

company meetings, a choice he believes was intended to limit his

visibility in the company, disparage and demean him. Id. ¶ 14.

       For some period of time, Mr. Kruger shared an office with a

co-worker. Id. ¶ 15. When that office was needed for a returning

Vice President, Mr. Kruger was placed in a cubicle, while his

co-worker, who was of a different national origin than Mr.



See April 9, 2015 Minute Order. Cogent’s reply brief in support
of its motion to dismiss addresses Mr. Kruger’s proposed amended
complaint. Def.’s Rep., Docket No. 14. Therefore, the Court will
construe Cogent’s motion to dismiss as a motion to dismiss Mr.
Kruger’s amended complaint. See Nat’l City Mortg. Co. v.
Novarro, 220 F.R.D. 102, 106 (D.D.C. 2004) (where plaintiff is
granted leave to file an amended complaint, the amended
complaint supersedes the original complaint and becomes the
operative complaint).


                                  2
Kruger, was placed in an office. Id. ¶ 15. Mr. Kruger alleges

that Cogent’s Chief Executive Officer (“CEO”), Mr. Schaeffer,

would “be polite and most often friendly at meetings or other

company events to all of the other employees of the company,”

but would “consistently ignore Mr. Kruger and refuse[] to engage

in any type of normal work-place pleasantry.” Id. ¶ 18.

     Mr. Kruger alleges that he was the only executive at Cogent

who was scrutinized for his attendance by his supervisors

whereas “one executive of Jewish religious beliefs . . . was

allowed to play computer games at work without consequences.”

Id. ¶ 19. Mr. Kruger alleges that there were statements and

references made about his German last name, and that in one

work-place interaction, Mr. Schaeffer referred to Mr. Kruger as

a “Nazi.” Id. ¶ 20. In another instance, another manager told

Mr. Kruger that he would not win a particular argument with Mr.

Schaeffer because of Mr. Schaeffer’s Jewish heritage and Mr.

Kruger’s German last name. Id. ¶ 21.

     Mr. Kruger further alleges that he was consistently passed

over for promotions. Id. ¶ 22. In particular, Mr. Kruger was

denied a promotion to the position of Director of Provisioning

and Carrier Services. Id. The individual chosen for the position

was a “non-Hispanic with a non-German surname, who at the time

had less experience than Mr. Kruger.” Id. Finally, in 2010, Mr.

Kruger was informed that his position was being eliminated and


                                3
that he would be terminated from Cogent. Id. ¶ 24. He was told

that there was no comparable position in the company to which he

could transfer. Id. ¶ 25. However, on the day he was terminated,

a vacancy notice was posted for a position “seeking a person

with the same skills, knowledge, and abilities as Mr. Kruger.”

Id.

      Mr. Kruger’s amended complaint brings four counts under

Title VII: (1) national origin discrimination; (2) religious

discrimination; (3) national origin discrimination creating a

hostile work environment; and (4) religious discrimination

creating a hostile work environment. Id. at 5-6. Cogent moves to

dismiss Mr. Kruger’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(6). See generally, Def.’s Mot. Cogent argues

that (1) Mr. Kruger failed to exhaust his administrative

remedies with respect to his hostile work environment and

national origin discrimination claims; (2) Mr. Kruger’s claims

for hostile work environment are patently deficient; and (3) Mr.

Kruger’s religious and national origin discrimination claims

fail as a matter of law. Id. at 6-15.

  II.   MR. KRUGER’S MOTION FOR LEAVE TO FILE AN AMENDED
        COMPLAINT

      A. Legal Standard

      Federal Rule of Civil Procedure 15(a) provides that leave

to file an amended complaint should be “freely give[n] . . .



                                 4
when justice so requires.” Fed. R. Civ. P. 15(a)(2). Although

the decision to grant a motion to amend is within the district

court’s discretion, Walker v. Pharm. Research & Mfrs. of Am.,

256 F.R.D. 234, 238 (D.D.C. 2009), it is an abuse of discretion

for the court to deny leave without “provid[ing] a sufficiently

compelling reason.” Robinson v. Detroit News, Inc., 211 F. Supp.

2d 101, 113-14 (D.D.C. 2002). Such reasons may include “undue

delay, bad faith or dilatory motive of the part of the movant,

repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, [or] futility of amendment.” Foman

v. Davis, 371 U.S. 178, 182 (1962).

     Generally, under Rule 15(a), the non-movant bears the

burden of persuasion that a motion to amend should be denied.

See Dove v. Wash. Metro. Area Transit Auth., 221 F.R.D. 246, 247

(D.D.C. 2004). A court may deny as futile a motion to amend a

complaint when the plaintiff’s proposed amended complaint would

not survive a motion to dismiss. Nat’l Wrestling Coaches v.

Dep’t of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004); Robinson,

211 F. Supp. 2d at 114.

     B. Analysis

     Mr. Kruger seeks to amend his complaint to “add further

factual support” to his claims for discrimination and to




                                5
withdraw two claims he had asserted in his initial complaint. 2

Pl.’s Mot. at 1. Cogent opposes the motion, arguing that Mr.

Kruger’s proposed amendment is futile as the amended complaint

would not survive a motion to dismiss. See generally Def.’s Mem.

Opp., Docket No. 11. Cogent does not allege undue delay, bad

faith or dilatory motive, repeated failure to cure deficiencies

by amendments previously allowed, or any undue prejudice to them

by allowing the amendment. In light of the Court’s

contemporaneous determination that Mr. Kruger’s amended

complaint can survive a motion to dismiss, see infra Section

III.C, the Court will exercise its discretion under Rule 15(a)

and grant Mr. Kruger’s motion for leave to file an amended

complaint. See Faison v. Dist. of Columbia, No. 11-CIV-0916,

2012 WL 640040, at *1 (D.D.C. Feb. 24, 2012). Accordingly, Mr.

Kruger’s motion for leave to file an amended complaint is

GRANTED.

    III. COGENT’S MOTION TO DISMISS

      A. Standard of Review

           1. Federal Rule of Civil Procedure 12(b)(6)

      A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) “tests the legal sufficiency of a complaint.”


2 Mr. Kruger’s initial complaint included claims for race
discrimination and hostile work environment on the basis of
race. See Compl., Docket No. 1.


                                 6
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (internal quotations omitted). While

detailed factual allegations are not necessary, the plaintiff

must plead enough facts to “raise a right to relief above the

speculative level.” Id.

     When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in the

plaintiff’s favor and grant plaintiff the benefit of all

reasonable inferences deriving from the complaint. Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1984). However,

the Court must not accept plaintiff’s inferences that are

“unsupported by the facts set out in the complaint.” Id. “[O]nly

a complaint that states a plausible claim for relief survives a

motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.


                                7
          2. Federal Rule of Civil Procedure 56

      “If, on a motion under Rule 12(b)(6) . . . matters outside

the pleadings are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under

Rule 56.” Fed. R. Civ. P. 12(d).       When this occurs “[a]ll

parties must be given a reasonable opportunity to present all

the material that is pertinent to the motion.”       Id.

     Summary judgement is appropriate when the moving party has

shown that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.

Cir. 2002). A material fact is one that is capable of affecting

the outcome of the litigation. Anderson v. Liberty Lobby, 477

U.S. 242, 248 (1986). A genuine issue is one where the “evidence

is such that a reasonable jury could return a verdict for the

non-moving party.” Id. A court considering a motion for summary

judgment must draw all “justifiable inferences” from the

evidence in favor of the nonmovant. Id. at 255. To survive a

motion for summary judgment, however, the nonmovant “must do

more than simply show that there is some metaphysical doubt as

to the material fact”; instead, the nonmoving party must come

forward with “specific facts showing that there is a genuine

issue for trial.” Matsushita Elec. Indus. Co. Ltd., v. Zenith


                                   8
Radio Corp., 475 U.S. 574 (1986) (quoting Fed. R. Civ. P.

56(e)).

     “The decision to convert a motion to dismiss into a motion

for summary judgment . . . is committed to the sound discretion

of the trial court.”   Flynn v. Tiede-Zoeller, Inc., 412 F. Supp.

2d 46, 50 (D.D.C. 2006). When a Rule 12(b)(6) motion is treated

as a motion for summary judgment prior to the parties being

“provided with notice or an opportunity for discovery,” the

parties must “have had a reasonable opportunity to contest the

matters outside of the pleadings such that they are not taken by

surprise.”   Latson v. Holder, 82 F. Supp. 3d 377, 383

(2015)(internal citations omitted).

     Because the Court considers materials outside the pleadings

in addressing Cogent’s motion to dismiss Mr. Kruger’s hostile

work environment and national origin discrimination claims for

failure to exhaust administrative remedies, that portion of

Cogent’s motion to dismiss will be converted to a motion for

summary judgment.

     B. Legal Standard Under Title VII

     The two “essential elements” of a discrimination claim are

that “(i) the plaintiff suffered an adverse employment action

(ii) because of the plaintiff’s race, color, religion, sex,

national origin, age, or disability.” Baloch v. Kempthorne, 550

F.3d 1191, 1196 (D.C. Cir. 2008). An “adverse employment action”


                                 9
is “a significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing significant

change in benefits.”). Baird v. Gotbaum, 662 F.3d 1246, 1248

(D.C. Cir. 2011). Although an employment discrimination

plaintiff need not plead each element of a prima facie case to

survive a motion to dismiss, he must nevertheless “plead

sufficient facts to show a plausible entitlement to relief.”

Edwards v. Gray, 7 F. Supp. 3d 111, 115 (D.D.C. 2013).

     An employee states a claim for discrimination creating a

hostile work environment claim where he alleges a workplace

“permeated with discriminatory intimidation, ridicule, and

insult . . . that is sufficiently severe or pervasive to alter

the conditions of the victim’s employment and create an abusive

working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17,

21 (1993) (internal citations and quotations omitted).

     Before commencing an action based on Title VII in federal

court, a plaintiff must first exhaust his administrative

remedies by filing a timely charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”). Lewis v. City

of Chicago, Ill., 560 U.S. 205, 210 (2010). The lawsuit

following the EEOC charge is “limited in scope to claims that

are like or reasonably related to the allegations of the charge

and growing out of such allegations.” Park v. Howard Univ., 71


                               10
F.3d 904, 907 (D.C. Cir. 1995), cert. denied, 519 U.S. 811

(1996). Specifically, a plaintiff’s claims “must arise from the

administrative investigation that can reasonably be expected to

follow the charge of discrimination.” Id. (citing Chisholm v.

U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)).

     C. Analysis of Mr. Kruger’s National Origin, Religious
        Discrimination Claims, and Hostile Work Environment
        Claims

     The amended complaint alleges that Cogent discriminated

against Mr. Kruger on the basis of his national origin (Hispanic

and German) 3 and religion (Christian). See generally Am. Compl.

Cogent argues that although the complaint alleges adverse

employment actions, no facts in the complaint suggest that these

actions were taken because of Mr. Kruger’s national origin or

religion. Def.’s Mem. Supp., Docket No. 5-1 at 13-15.

          1. The amended complaint states a plausible claim for
             national origin discrimination.

     The amended complaint satisfies the pleading standard

necessary to state a claim for national origin discrimination.

Mr. Kruger alleges that, despite performing well at his job, he

was consistently denied promotions and bonuses received by


3 A claim for national origin discrimination alleges
discrimination on the basis of either “the country where a
person was born, or more broadly, the country from which his or
her ancestors came.” Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88
(1973). Thus, an individual may have more than one national
origin if he was born in a different country than his ancestors,
or if his ancestors come from more than one country.


                                11
employees of different national origins. Am. Compl., ¶¶ 13, 22.

He alleges that statements and references were made to his

German last name, and that in one interaction, his supervisor,

Mr. Schaeffer, an individual of Jewish heritage, referred to Mr.

Kruger as a “Nazi.” Id. ¶ 19. He alleges that he was passed over

for a promotion in favor of a less experienced individual of

non-Hispanic and non-German national origin. Id. ¶ 20. Finally,

he alleges that he was terminated by Cogent and that on the same

day, a vacancy announcement was posted for a person with the

same skills, knowledge and abilities that he possessed. Id. ¶¶

24-25.

     These allegations raise a reasonable inference that Mr.

Kruger was discriminated against because of his national origin.

See Attakora v. Dist. of Columbia, 943 F. Supp. 2d 152, 157

(D.D.C. 2013) (denying a motion to dismiss plaintiff’s national

origin discrimination claim where plaintiff alleged, among other

things, that his superior made disparaging statements about

individuals of African descent and that a non-African employee

was hired to replace the plaintiff after his termination). The

allegation that Mr. Kruger’s supervisor once referred to him as

a “Nazi,” a term that carries significant derogatory meaning,

pushes Mr. Kruger’s claims “across the line from conceivable to

plausible.” Iqbal, 556 U.S. at 680; cf. Ayissi-Etoh v. Fannie

Mae, 712 F.3d 572, 578 (D.C. Cir. 2013) (plaintiff stated a


                               12
claim for hostile work environment discrimination on the basis

of race where he alleged, among other things, a single use of a

highly offensive racial epithet). Accordingly, Cogent’s motion

to dismiss Mr. Kruger’s national origin discrimination claim is

DENIED.

          2. The amended complaint states a plausible claim for
             religious discrimination.

     As with his claim for national origin discrimination, Mr.

Kruger has satisfied the pleading standard with respect to his

religious discrimination claim. Mr. Kruger alleges that, despite

performing well at his job, he was consistently denied

promotions and bonuses that were received by similarly-situated

coworkers of different religions. Am. Compl. ¶ 13. Mr. Kruger

further alleges that he was the only executive scrutinized for

his attendance while other high level managers were treated more

favorably, including “one executive of Jewish religious beliefs

who was allowed to play computer games at work without

consequences.” Id. ¶ 20. Mr. Kruger alleges that the adverse

actions taken against him, including the failure to promote,

failure to properly compensate, and his termination, occurred

because of his religion. Am. Compl. at 6.

     Under the standard set forth in Iqbal, to survive a motion

to dismiss, Mr. Kruger’s amended complaint need only “contain[]

sufficient factual matter” from which the Court can “draw the



                               13
reasonable inference” that Cogent violated Title VII by

discriminating against Mr. Kruger on the basis of his religion.

See Iqbal, 556 U.S. at 663. Based on Mr. Kruger’s allegations,

it is reasonable for the Court to infer that Mr. Kruger suffered

adverse employment actions because he was Christain, rather than

Jewish. Accordingly, Cogent’s motion to dismiss Mr. Kruger’s

religious discrimination claim is DENIED.

          3. Mr. Kruger has stated a plausible claim for hostile
             work environment.

     Cogent argues that Mr. Kruger’s hostile work environment

claims are also subject to dismissal because the allegations in

the amended complaint, “fall well-short of stating a claim for

hostile work environment.” Def.’s Mem. Supp. at 10. This

argument also fails as Mr. Kruger’s amended complaint states a

plausible claim for hostile work environment.

     In evaluating a hostile work environment claim, the court

“looks to the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work

performance.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.

Cir. 2008) (citing Faragher v. City of Boca Raton, 524 U.S. 775,

787-88 (1998)). In the amended complaint, Mr. Kruger alleges

that Mr. Schaeffer, engaged in an intentional “public display of

hostility toward Mr. Kruger.” Am. Compl., ¶ 18. While Mr.



                               14
Schaeffer would acknowledge other employees with “at least an

appropriately cordial greeting,” he would “consistently ignore

Mr. Kruger and refused to engage in any type of normal work-

place pleasantry.” Id. Mr. Kruger alleges that he was the “only

executive scrutinized for his attendance by his supervisor,” and

that “there were statements and references made to [his] German

last name.” Id. ¶¶ 19, 20. Finally, Mr. Kruger alleges that in

one interaction, Mr. Schaeffer referred to Mr. Kruger as a

“Nazi.” Id. ¶ 20. Mr. Kruger alleges Cogent created this hostile

work environment because of Mr. Kruger’s national origin and

religion. Id. at 6.

     These allegations are sufficient to survive a motion to

dismiss. The Court notes that the allegation that Cogent’s CEO

once referred to Mr. Kruger as a “Nazi” may be severe enough in

itself to state a hostile work environment claim. See Ayissi-

Etoh, 712 F.3d at 579 (Kavanuagh, J., concurring)(“The test set

forth by the Supreme Court is whether the alleged conduct is

‘sufficiently severe or pervasive’ – written in the disjunctive

– not whether the conduct is ‘sufficiently severe and

pervasive.’ A single, sufficiently severe incident, then, may

suffice to create a hostile work environment.”). But Mr. Kruger

alleges more. Here, Mr. Kruger’s allegations that there were

references to his German last name, that he was the only

executive scrutinized for his attendance, and that his


                               15
supervisor refused to engage in work place pleasantries add

further strength to his hostile work environment claims.

Accordingly, Cogent’s motion to dismiss Mr. Kruger’s hostile

work environment claims is DENIED.

          4. There are issues of fact as to whether Mr. Kruger
             exhausted his hostile work environment and national
             origin discrimination claims.

     Cogent argues that Mr. Kruger failed to administratively

exhaust his hostile work environment and national origin

discrimination claims because he failed to raise these claims in

his charge before the EEOC. Def.’s Mem. Supp. at 6-10.

Specifically, Cogent argues that there are “no factual

allegations presented in the Charge that would put the EEOC on

notice of any harassment, hostile work environment and/or

national origin discrimination (on the basis of Plaintiff’s

German last name), and give rise to an investigation of those

claims.” Id. at 7.

     Cogent attaches to its motion to dismiss a one-page EEOC

Form 5, entitled “Charge of Discrimination,” dated November 7,

2011, and a two-page EEOC Form 161, entitled “Dismissal and

Notice of Rights,” dated July 18, 2014. Def.’s Exs. A, B.

Relying on Ndondji v. Interpark, Inc., 768 F. Supp. 2d 264, 272

(D.D.C. 2001), Cogent asserts that the Court may consider Mr.

Kruger’s EEOC Charge in evaluating Cogent’s motion to dismiss




                               16
because it is a “public document of which a court may take

judicial notice.” Def.’s Mem. Supp. at 4 n.5.

     Mr. Kruger responds that he properly exhausted these claims

because the facts giving rise to these claims are “meticulously

outlined in his EEOC intake questionnaire.” Pl.’s Mem. Opp.,

Docket No. 13 at 11. Mr. Kruger attaches to his opposition to

the motion the dismiss the same EEOC Form 5, pages two through

four of an EEOC Intake Questionnaire dated February 13, 2011,

and ten additional pages responding to specific questions on the

Intake Questionnaire, that appear to have been submitted as

attachments to the Intake Questionnaire. See Pl.’s Ex. 1.

Mr. Kruger’s EEOC Form 5 reads as follows:

     I began working as Director of Service Delivery, NA by
     the above employer in October 30, 2000.

     During my employment I was consistently passed over
     for promotions, e.g., Director of Provisioning and
     Carrier Services. I also did not receive bonuses as
     other employees did. I was the only executive excluded
     from attending annual sales meetings outside of local
     events. I was moved from an office to a cubicle, while
     my officemate was moved to another office. I was also
     the only executive scrutinized for attendance by my
     supervisor, Mr. Lee Livingston and Mr. Dave Schaeffer,
     CEO, Founder/Owner. On or about October 13, 2010, I
     returned to work from sick leave. The same day, I was
     discharged and not considered for promotion to Senior
     Director by Mr. Schaeffer. To the best of my knowledge
     an American employee was promoted.

     I believe I have been discriminated against because of
     my Race (White), National origin (Hispanic), and
     Religion (Christian), in violation of Title VII of the
     Civil Rights Act of 1964, as amended.



                               17
Def.’s Ex. A at 1. On the form, Mr. Kruger checked the boxes for

Race, religion, and national origin discrimination. Id. There is

no box for “hostile work environment.” Id.

     On the Intake Questionnaire, Mr. Kruger alleges, among

other things, that “persistent statements and references were

made to [his] German last name”, that he was subject to

“[r]umors related to [his] race, religion, and last name,” and

“[m]ulti slurs that I refuse to mention[],” that Cogent’s CEO

“created an environment of discriminatory practice,” and that

Cogent generally allowed for a “business culture that was

supported by derogatory remarks.” Id. at 6, 10, 15. Mr. Kruger

further attaches a sworn declaration by his attorney indicating

that the documents submitted as Plaintiff’s Exhibit 1 were

received in response to a Freedom of Information Act (“FOIA”)

request submitted by Mr. Kruger’s attorney with the EEOC. Pl.’s

Ex. 2. Mr. Kruger’s attorney represents that the FOIA request

“only requested materials from the files for Mr. Kruger” and

that “all of the pages in Exhibit 1 were situated together, and

in the exact same order as submitted here.” Id. at 3.

     Because the Court relies on these materials in addressing

Cogent’s argument that Mr. Kruger failed to exhaust his

administrative remedies with respect to his hostile work

environment and national origin discrimination claims, the Court

will convert Cogent’s motion to dismiss as a motion for summary


                               18
judgment for purposes of addressing this argument. Mr. Kruger

refers to his EEOC charge in his amended complaint, see Am.

Compl. ¶ 30, and thus the Court considers the charge

incorporated by reference. “[D]ocuments that are referenced in,

or are an integral part of the complaint are deemed not ‘outside

the pleadings.’” Peters v. Dist. of Columbia, 873 F. Supp. 2d

158, 179 n. 20 (D.D.C. 2012)(citing Fed. R. Civ. P. 12(d)).

Further, the Court can take judicial notice of Mr. Kruger’s EEOC

Charge as it is a public documents.   Ahuja v. Detica, Inc., 742

F. Supp. 2d 96, 101-02 (D.D.C. 2001)(taking judicial notice of

an EEOC Complaint and Notice of Charge.) Because Mr. Kruger’s

attorney’s declaration is “outside the pleadings,” the Court

will convert this portion of Cogent’s motion to a motion for

summary judgment. Based upon the record at this juncture, it is

not clear whether the Intake Questionnaire is a public document.

In any event, the Court will consider it because the Court has

converted this portion of the motion to a motion for summary

judgment.

     The Court is satisfied that the parties “have had a

reasonable opportunity to contest the matters outside of the

pleadings such that they are not taken by surprise.” Latson, 82

F. Supp. 3d at 383.   Cogent attached the EEOC Form 5 to its

motion to dismiss. That form does not, however, tell the whole

story of the proceeding before the EEOC as evidenced by the


                                19
Intake Questionnaire, which Mr. Kruger attached to his

opposition. Further, Mr. Kruger’s attorney has provided a

declaration to provide the basis for the submission of the

Intake Questionnaire. Cogent had a full opportunity to respond

to this information in its reply brief.

     Citing Park v. Howard University, Cogent argues that Mr.

Kruger’s complaint in this Court must be “limited in scope to

claims that are like or reasonably related to the allegations of

the charge and growing out of such allegations,” and that the

allegations in Mr. Kruger’s EEOC Intake Questionnaire are not

part of his EEOC charge. Def.’s Rep., Docket No. 14 at 3 (citing

Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995),

cert. denied, 519 U.S. 811 (1995)). Accordingly, Cogent urges

the Court to look to the face of Mr. Kruger’s EEOC Form 5 alone

in determining whether Mr. Kruger properly exhausted his

administrative remedies before the EEOC.

     In Park, the plaintiff, arguing she had exhausted her

administrative remedies before the EEOC, attempted to rely on

allegations found in an intake questionnaire she had completed

for the D.C. Department of Human Rights (“DCHOR”) several weeks

before filing her charge with the EEOC. Park, 71 F.3d at 908.

Finding that there was “no evidence” the defendant in that case

or the EEOC “ever had access to the questionnaire,” the D.C.

Circuit held that the plaintiff could not rely on allegations


                               20
found only in her DCHOR intake questionnaire to satisfy the

exhaustion requirement. Id. at 908-09.

     The Courts considers Park distinguishable from the facts

alleged in this case. Here, the record indicates that the EEOC

did have access to the EEOC Intake Questionnaire Mr. Kruger

attaches as Exhibit 1 and that Cogent would have been made aware

of information in the Questionnaire. Mr. Kruger’s attorney

obtained the questionnaire through a FOIA request filed with the

EEOC, indicating that the questionnaire was in the EEOC’s

possession. Page four of the questionnaire contains a section

directing the filer to “check one of the boxes below to tell us

what you would like us to do with the information you are

providing on this questionnaire.” Pl.’s Ex. 1 at 5. Mr. Kruger

checked ‘Box 2’ which states:

     I want to file a charge of discrimination, and I
     authorize the EEOC to look into the discrimination I
     described above. I understand that the EEOC must give
     the employer, union, or employment agency that I
     accuse of discrimination information about the charge,
     including my name . . .

Id. (emphasis in original). Therefore, unlike in Park, where

there was no evidence in the record the plaintiff’s employer or

the EEOC ever had access to the plaintiff’s DCHOR intake

questionnaire, here, the record shows that the EEOC was on

notice of the allegations raised in its own questionnaire and

that information provided in that questionnaire would have been



                                21
provided to Cogent as a part of the EEOC investigation. 4 In the

Intake Questionnaire, Mr. Kruger alleges that he was subjected

to rumors about his race, religion, and last name, that the CEO

created “an environment of discriminatory practice,” and that

Cogent operated under a “business culture that was supported by

derogatory remarks.” See Pl.’s Ex. 1 at 5, 10. Mr. Kruger’s

claims for hostile work environment reasonably grow from these

allegations. 5




4 Cogent’s reliance on Ahuja v. Detica Inc. is equally misplaced.
In Ahuja, the plaintiff attempted to rely on an intake
questionnaire submitted with the Arlington County Human Rights
Commission (“ACHRAC”), and not on an intake questionnaire filed
with the EEOC itself, as Mr. Kruger does here. See Ahuja, 873 F.
Supp. at 228 (D.D.C. 2012).
5 Moreover, it is unclear whether Park remains good law on the
issue of what qualifies as a “charge” of discrimination before
the EEOC, following the Supreme Court’s decision in Federal
Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). In
Holowecki, the Supreme Court, in assessing the timeliness of
suit brought pursuant to the Age Discrimination in Employment
Act (“ADEA”), held that an EEOC Intake Questionnaire may be
deemed a charge of discrimination “if the document reasonably
can be construed to request agency action and appropriate relief
on the employee’s behalf.” Id. at 404. Indeed, following
Holowecki, at least one court in this district has concluded
that an EEOC Intake Questionnaire satisfies the charge
requirement for purposes of administrative exhaustion. See
Leftwich v. Gallaudet Univ., 878 F. Supp. 2d 81, 91-92 (D.D.C.
2012); but see Ahuja, 873 F. Supp. 2d at 229-30 (finding that
the rule established in Holowecki is limited to determining
whether a lawsuit was timely filed, and does not allow the
plaintiff to expand the substantive scope of her lawsuit beyond
the allegations raised in the formal charge.) As neither party’s
brief addresses the effect of Holowecki on Mr. Kruger’s case,
the Court declines to reach the issue at this time.



                                22
     At this stage of the proceedings, prior to any discovery in

this case, the Court cannot find that there is no material fact

in dispute as to whether Mr. Kruger exhausted his administrative

remedy on his hostile work environment and national origin

discrimination claims. For example, the relationship between the

EEOC Intake Questionnaire and the EEOC Charge is unclear based

on the present record. Also, the first page of the Intake

Questionnaire is missing and thus the record is incomplete.

Accordingly, Cogent’s motion to dismiss Mr. Kruger’s hostile

work environment and national origin discrimination claims for

failure to exhaust administrative remedies, converted to a

motion for summary judgment on those claims, is DENIED without

prejudice.

  IV.     CONCLUSION

     For the foregoing reasons, Mr. Kruger’s motion for leave to

file an amended complaint is GRANTED, Cogent’s motion to dismiss

Mr. Kruger’s claims for national origin discrimination,

religious discrimination, and hostile work environment is

DENIED, and Cogent’s motion to dismiss Mr. Kruger’s hostile work

environment and national origin discrimination claims, converted

to a motion for summary judgment, is DENIED without prejudice.

An appropriate order accompanies this Memorandum Opinion.

Signed:     Emmet G. Sullivan
            United States District Judge
            March 30, 2016


                                 23
