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. 
2

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). 
3

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 
4

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] . . . 
5

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 
6

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. 
7

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. 
8

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 
9

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” 
10

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 
11

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. 
12

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 
13

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 
14

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. 
15

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 workplace 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 AyissiEtoh, 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 
16

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 
17

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. 
18

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 
19

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 
20

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 
21

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 
22

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. 
23

 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