United States District Court, District of Columbia
Emmet G. Sullivan United States District Judge.
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. That portion of Cogent’s motion to dismiss that is converted to a motion for summary judgment is DENIED without prejudice.
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. 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 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] . . . 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.
Mr. Kruger seeks to amend his complaint to “add further factual support” to his claims for discrimination and to withdraw two claims he had asserted in his initial complaint.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.” 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 ...