Jones v. UHS of Denver Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-03207-RMR-NRN
LATOSHAKE JONES,
Plaintiff,
v.
UHS OF DENVER INC. d/b/a HIGHLANDS BEHAVIORAL HEALTH,
Defendant.
REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
(ECF No. 16)
N. Reid Neureiter
United States Magistrate Judge
This matter is before the Court pursuant to an Order, ECF No. 17, issued by
Judge Regina M. Rodriguez referring Defendant UHS of Denver, Inc. d/b/a Highlands
Behavioral Health System’s (“Defendant”) Motion to Compel Arbitration and to Stay
Proceedings (the “Motion”), ECF No. 16. The Court has reviewed and carefully
considered the Motion, Plaintiff Latoshake Jones’s (“Plaintiff”) response, ECF No. 19,
and Defendant’s Reply, ECF No. 21. The Court heard oral argument at a hearing held
on January 28, 2026, see ECF No. 24. The Court has taken judicial notice of the Court’s
case file, and considered the applicable Federal Rules of Civil Procedure, statutes, and
case law.
Now being fully informed, and for the reasons discussed below, it is hereby
RECOMMENDED that the Motion be GRANTED.
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I. BACKGROUND
According to their Amended Employment Discrimination Complaint (“Amended
Complaint”), ECF No. 11, Plaintiff, “an African American individual with medically
diagnosed back impairment and fibromyalgia,” received a conditional employment offer
from Defendant for a Behavioral Health Technician position. Plaintiff disclosed their
medical conditions and requested accommodations. When Plaintiff arrived for
onboarding, they were “met with hostility and dismissiveness” by the human resources
representative. Plaintiff completed all onboarding requirements and underwent a
physical examination. However, Defendant rescinded Plaintiff’s job offer, “falsely
claiming that onboarding was incomplete” because Plaintiff did not provide a driver’s
license or references. Plaintiff attempted to “clarify their medical history and reaffirm
their ability to perform the job with reasonable accommodations,” but was informed that
“no office positions were available and that accommodation could not be provided.”
Plaintiff brings claims for (1) disability discrimination under the Americans with
Disabilities Act (“ADA”); (2) failure to engage in the interactive process under the ADA;
(3) retaliation under the ADA; and (4) race discrimination under Title VII.
Defendant moves to compel arbitration pursuant to the Federal Arbitration Act
(“FAA”), 9 U.S.C. §§ 1–16. Defendant states that Plaintiff was given a conditional offer
of employment on April 1, 2025, and the next day Plaintiff signed and executed an
Alternative Resolution for Conflicts Agreement (“ARC Agreement” or “Arbitration
Agreement”).1 The ARC Agreement “applies to any past, present or future dispute
arising out of or related to Employee’s application for employment, employment, and/or
1 The ARC Agreement is attached to the Motion at ECF No. 16-1.
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termination of employment with [Defendant] . . . and survives after the employment
relationship terminates. ECF No. 16-1 at 2.” Its scope is broad:
Except as it otherwise provides, this Agreement applies, without limitation,
to disputes regarding the employment relationship, compensation, breaks
and rest periods, seating, privacy, retaliation, discrimination, termination, or
harassment and claims arising under the Civil Rights Act of 1964, 42 U.S.C.
§ 1981, Americans With Disabilities Act, Age Discrimination in Employment
Act, Family Medical Leave Act, Fair Labor Standards Act, Fair Credit
Reporting Act, Uniformed Services Employment and Reemployment Rights
Act, Employee Retirement Income Security Act (except for claims for
employee benefits under any benefit plan sponsored by the Company and
covered by the Employee Retirement Income Security Act of 1974 or funded
by insurance), Genetic Information Non-Discrimination Act, Older Workers
Benefits Protection Act of 1990, Occupational Safety and Health Act,
Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims
Act, and state statutes, if any, addressing the same or similar subject
matters, and all other state statutory and common law claims.
Id.
The ARC Agreement does not contain Plaintiff’s handwritten signature, but rather
a checkbox:
Id. at 6. The ARC Agreement goes on to provide:
By checking the checkbox above, You are electronically signing this
Agreement and agreeing that You carefully read and agree to this
Agreement, and that both You and the Company agree to arbitrate covered
claims. Checking the checkbox above is equivalent to a handwritten
signature, and You authorize the use of an electronic means of acceptance
and understand and acknowledge that Your electronic acceptance is valid
and has the same legal effect as a handwritten signature.
Id. at 6–7.
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Defendant’s Motion is also supported by the Declaration of Curt Shaner. ECF No.
16-2. Mr. Shaner is Defendant’s Assistant Director of Recruitment Operations, and his
declaration explains that prospective employees complete the electronic application and
onboarding process by setting up a password-protected account with a third-party
software company. Id. ¶¶ 3–6. Mr. Shaner states that Plaintiff created such an account
and confirms that Plaintiff electronically signed the ARC Agreement. Id. ¶ 8.
Plaintiff claims that they do not recall signing the ARC Agreement and it is invalid
anyway because it “contains only a computer generated insertion of Plaintiff’s name, not
an actual signature.” ECF No. 19 at 1. Plaintiff further states that the ARC Agreement is
unenforceable because Plaintiff was not given an opportunity to review or negotiate its
terms and it “unfairly restrict[s] Plaintiff’s ability to pursue statutory rights in court.” Id. at
2. Plaintiff also argues that the ARC Agreement does not cover employment
discrimination claims, and contends that Defendant waived arbitration by participating in
the lawsuit. Id.
II. Pro se Plaintiff
Plaintiff proceeds pro se. The Court, therefore, “review[s their] pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. U.S., 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted).
However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
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State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. N.M., 113
F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional factual
allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d
1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the
plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle them to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
III. STANDARD OF REVIEW
As a threshold matter, the Court addresses its authority to rule on a motion to
compel arbitration under 28 U.S.C. § 636, which sets forth matters a U.S. Magistrate
Judge has the statutory authority to resolve by order versus a report and
recommendation. Courts addressing this issue “are divided on whether motions to
compel arbitration are dispositive for purposes of 28 U.S.C. § 636(b)(1).” Vernon v.
Qwest Commc’n Int’l, Inc., 857 F. Supp. 2d 1135, 1140 (D. Colo. 2012) (“Qwest I”). To
date the Tenth Circuit has not decided the issue. Santich v. VCG Holding Corp., No. 17-
cv-00631-RM-MEH, 2018 WL 3968879, at *3 (D. Colo. Aug. 20, 2018).
The difference determines the standard of review applied by the Article III District
Court Judge: if this Court views the motion to compel as non-dispositive, and thus rules
on it in a written order, that order is reviewed under a clearly erroneous or contrary to
law standard under Federal Rule of Civil Procedure 72(a); whereas, if it views the
motion as dispositive, a report and recommendation will be issued and, if any party
objects to it, it will result in de novo review under Federal Rule of Civil Procedure
72(b)(3).
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In Qwest I, after engaging in a very detailed analysis of whether a motion to
compel arbitration should be deemed dispositive versus non-dispositive, Magistrate
Judge Craig B. Shaffer concluded such motions are non-dispositive. 857 F. Supp. 2d at
1141. Judge R. Brooke Jackson nonetheless “elect[ed] to assume that the motion [to
compel arbitration] was dispositive,” and thus he reviewed Judge Shaffer’s order de
novo. Vernon v. Qwest Commc’ns Int’l, Inc., 925 F. Supp. 2d 1185, 1189 (D. Colo.
2013) (“Qwest II”). Based on Judge Jackson’s assumption, and out of an abundance of
caution, this Court also elects to view the motion as dispositive, and therefore issues a
report and recommendation as opposed to an order.
Having resolved this threshold issue, the Court turns to the existence, validity,
and scope of the alleged arbitration agreement.
IV. ANALYSIS
Under the FAA, agreements to arbitrate are “valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any contract.” 9
U.S.C. § 2. The Supreme Court has “long recognized and enforced a liberal federal
policy favoring arbitration agreements,” and under this policy, any “doubts concerning
the scope of arbitrable issues should be resolved in favor of arbitration.” Nat’l Am. Ins.
Co. v. SCOR Reinsurance Co., 362 F.3d 1288, 1290 (10th Cir. 2004) (quoting Howsam
v. Dean Witter Reynalds, Inc., 537 U.S. 79, 83 (2002) and Spahr v. Secco, 330 F.3d
1266, 1269–70 (10th Cir. 2003)).
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The analysis required under the FAA is two-fold. First, the Court must determine
whether a valid agreement to arbitrate exists.2 This “is a threshold issue which must be
established before the FAA can be invoked.” Avedon Eng’g, Inc. v. Seatex, 126 F.3d
1279, 1287 (10th Cir. 1997). When, as here, the parties dispute the existence of a valid
arbitration agreement, there is no presumption in favor of arbitration. Dumais v. Am.
Golf. Corp., 299 F.3d 1216, 1220 (10th Cir. 2002); see also Riley Mfg. Co. v. Anchor
Glass Container Corp., 157 F.3d 775, 779 (10th Cir. 1998) (“Unlike the general
presumption that a particular issue is arbitrable when the existence of an arbitration
agreement is not in dispute, when the dispute is whether there is a valid and
enforceable arbitration agreement in the first place, the presumption of arbitrability falls
away.”) (internal citation omitted). As a result, “[a] court may compel arbitration of a
particular dispute . . . only when satisfied that the ‘making’ of the agreement to
arbitration is not at issue.” SCOR Reinsurance Co., 362 F.3d at 1290 (quoting Spahr,
330 F.3d at 1270).
Second, if a valid arbitration agreement exists, the Court then must determine
whether the specific dispute between the parties falls within the scope of that
agreement. Mitsubishi Motors Corp. v. Soler Chrylser-Plymouth, Inc., 473 U.S. 614, 626
(1985); Pikes Peak Nephrology Assocs., P.C. v. Total Renal Case, Inc., No. 09-cv-
00928-CMA-MEH, 2010 WL 1348326, at *5 (D. Colo. Mar. 30, 2010). Once a court
2 Disputes concerning the existence of an arbitration agreement “are to be
resolved by the courts unless the parties have agreed, in ‘clear and unmistakable’
terms, to submit them to arbitration.” Commc’n Workers of Am. v. Avaya, Inc., 693 F.3d
1295, 1303 (10th Cir. 2012) (citation omitted). Indeed, there is a “presumption that
questions about the arbitrability of an arbitration dispute will be resolved by the courts.”
Id.
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concludes a valid arbitration agreement exists, the FAA mandates a stay of a judicial
proceeding “upon any issue referable to arbitration under an agreement in writing for
such arbitration.” 9 U.S.C. § 3; see also Am. Family Mut. Ins. Co. v. TAMKO Bldg.
Prods., 178 F. Supp. 3d 1121, 1129 (D. Colo. 2016).
a. Whether a Valid Arbitration Agreement Exists
Concerning the first prong of the analysis, “[t]he existence of an agreement to
arbitrate ‘is simply a matter of contract between the parties; [arbitration] is a way to
resolve those disputes—but only those disputes—that the parties have agreed to submit
to arbitration.’” Avedon Eng’g, Inc., 126 F.3d at 1283 (quoting First Options of Chicago,
Inc. v. Kaplan, 514 U.S. 938, 943–45 (1995)). ”[I]n deciding whether there is an
enforceable agreement to arbitrate, ‘courts generally . . . should apply ordinary state-law
principles that govern the formation of contracts.’” Qwest I, 857 F. Supp. 2d at 1142
(quoting First Options of Chicago, 514 U.S. at 944 (1995)).
“Contract formation in Colorado requires evidence ‘that the parties agreed upon
all essential terms.’” Ragab v. Howard, 841 F.3d 1134, 1137 (10th Cir. 2016) (quoting
I.M.A., Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882, 888 (Colo. 1986)); see also
PayoutOne v. Coral Mortg. Bankers, 602 F. Supp. 2d 1219, 1224 (D. Colo. 2009)
(“Contract formation requires mutual assent to an exchange between competent
parties—where an offer is made and accepted—regarding a subject matter which is
certain, and for which there is legal consideration.”). “A meeting of the minds is
essential.” Ragab, 841 F.3d at 1137 (citing Agritrack, Inc. v. DeJohn Housemoving, Inc.,
25 P.3d 1187, 1192 (Colo. 2001)). Indeed, the touchstone of any “agreement” is a
“manifestation of mutual assent on the part of two or more persons as to the substance
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of a contract.” Agreement, Black’s Law Dictionary (6th ed. 1990) (citing Restatement
(Second) Contracts § 3 (A.L.I. 1981)). “This can be demonstrated by the parties’
‘conduct, their oral statements and their writings, and other evidence illuminating the
circumstances surrounding the making of an agreement.’” Ragab, 841 F.3d at 1137
(quoting I.M.A., 713 P.2d at 888). “Courts cannot create or enforce contracts between
parties when the contract itself does not clearly demonstrate the parties’ intent.” Id.
(citing Newton Oil Co. v. Bockhold, 115 Colo. 510, 176 P.2d 904, 908 (1946)).
Because Defendant is the party claiming an obligation to arbitrate, it has the
burden of “present[ing] evidence sufficient to demonstrate an enforceable arbitration
agreement.” Stein v. Burt-Kuni One, LLC, 396 F. Supp. 2d 1211, 1213 (D. Colo. 2005).
The appropriate standard is “similar to that governing motions for summary judgment.”
Id. Thus, once Defendant makes this showing, the burden shifts to Plaintiff to raise a
genuine issue of material fact concerning the making of the agreement using evidence
comparable to that required by Federal Rule of Civil Procedure 56. Id. If Plaintiff fails to
do so, arbitration is appropriate for all disputes covered by the arbitration agreement. If,
on the other hand, Plaintiff demonstrates a genuine issue of material fact, a trial must be
held concerning the existence of an arbitration agreement. See, e.g., Avedon, 126 F.3d
at 1283 (“When parties dispute the making of an agreement to arbitrate, a jury trial on
the existence of the agreement is warranted unless there are no genuine issues of
material fact regarding the parties’ agreement.”)3
3 The Court’s interpretation of the relevant case law indicates that if either party
presents sufficient evidence to create a genuine issue of material fact as to the
existence of an agreement to arbitrate, a trial on this issue is warranted.
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Here, Defendant has presented clear evidence that Plaintiff entered into the ARC
Agreement. The document is electronically signed and dated, with a time stamp
indicating the specific date and time that Plaintiff read, signed, and assented to it. See
ECF No. 16-1 at 6. Mr. Shaner explained that the “ARC Agreement is assigned to a
candidate only during the onboarding process and can only be accessed and completed
by the owner of the account after entering unique login credentials, including their
confidential password to access documents.” ECF No. 16-2 ¶ 8. The Court finds that
Defendant has satisfied its initial burden to show that Plaintiff and Defendant mutually
assented to arbitrate their claims.
The burden shifts to Plaintiff to show genuine issue of material fact concerning
the making of the Arc Agreement. Plaintiff has not met that burden. Instead, they argue,
without any supporting evidence, that (1) they do not remember signing the document,
and (2) it does not contain Plaintiff’s handwritten signature. Neither of these arguments
are persuasive.
First, Plaintiff does not actually deny that they executed the ARC Agreement, and
“[Plaintiff]’s inability to recall signing an arbitration agreement does not dispute the
evidence produced by [Defendant] showing that [Plaintiff] did enter a contract to
arbitrate.” Alvarez v. TTEC Servs. Corp., No. 24-cv-02847-PAB-SBP, 2026 WL 352884,
at *4 (D. Colo. Feb. 9, 2026); see also Beattie v. TTEC Healthcare Sols., Inc., No. 18-
cv-01574-RM-SKC, 2019 WL 2189481, at *2 (D. Colo. May 21, 2019) (“General denials
and statements that a user does not recall visiting a website or agreeing to arbitrate are
insufficient to defeat arbitration.”) (alterations and citation omitted); Solorio v. ABC
Phones of N. Carolina, Inc., 2021 WL 2390420, at *3 (E.D. Cal. June 11, 2021) (“The
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fact that a person does not remember signing an Arbitration Agreement is not sufficient
to challenge the existence of an agreement.”) (internal quotation, alterations, and
citations omitted); Trevino v. Acosta, Inc., 2018 WL 3537885, at 7 (N.D. Cal. July 23,
2018) (“As [plaintiff] provides no evidence . . . , other than [plaintiff’s] declaration that he
did not remember everything he signed, the Court finds by a preponderance of evidence
that plaintiff signed the arbitration agreement.”) (applying California law).
Second, Under Colorado law,
(1) A record or signature may not be denied legal effect or enforceability
solely because it is in electronic form.
(2) A contract may not be denied legal effect or enforceability solely
because an electronic record was used in its formation.
(3) If a law requires a record to be in writing, an electronic record satisfies
the law.
(4) If a law requires a signature, an electronic signature satisfies the law.
Colo. Rev. Stat. § 24-71.3-107(1)–(4). Thus, “signatures on written agreements—
including digital signatures—are widely accepted as evidence of mutual assent.” Levine
v. Vitamin Cottage Nat. Food Markets, Inc., No. 20-cv-00261-STV, 2021 WL 4439800,
at *6 (D. Colo. Sept. 27, 2021); see also Aerotek, Inc. v. Boyd, 624 S.W. 3d 199, 208
(Tex. 2021) (recognizing digital signatures as valid); Haywood Sec., Inc. v. Ehrlich, 149
P.3d 738, 741 n.2 (Ariz. 2007) (recognizing electronic signature and noting that
Arizona's Electronic Transactions Act recognizes electronic signatures); Walker v.
Dillard's, Inc., No. 17-657 MV/KK, 2019 WL 1283001, at *3 (D.N.M. Mar. 20, 2019)
(recognizing, under New Mexico law, electronic signature on an arbitration agreement).
“And Courts regularly accept evidence of a company's regular practices as evidence
that an employee signed an agreement as part of employment onboarding or other
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standard procedure.” Levine, 2021 WL 4439800, at *6. Here, Plaintiff has not raised any
genuine dispute that, as part of the application and onboarding process, they
electronically signed the ARC Agreement, which, by the express terms of the contract,
was the equivalent of a handwritten signature. Therefore, Court concludes that the ARC
Agreement is a valid agreement to arbitrate.
b. Whether Plaintiff’s Claims Fall Within the Scope of the Arbitration
Agreement
Plaintiff also argues in a conclusory fashion that the ARC Agreement does not
cover all the claims asserted in this suit. The Court disagrees.
Questions “concerning the scope of arbitrable issues should be resolved in favor
of arbitration.” Encore Prod., Inc. v. Promise Keepers, 53 F. Supp. 2d 1101, 1109 (D.
Colo. 1999) (citation omitted). Here, the ARC Agreement unambiguously requires
“applies to any past, present or future dispute arising out of or related to Employee's
application for employment, employment, and/or termination of employment . . . .” ECF
No. 16-1 at 2. Plaintiff’s claims plainly arise out of their “application for employment.”
Moreover, Plaintiff asserts claims under the ADA and Title VII, which are expressly and
unambiguously included in the ARC Agreement. See id. ([T]his Agreement applies,
without limitation, to . . . claims arising under the Civil Rights Act of 1964, . . . Americans
With Disabilities Act, . . . .”). Thus, there is no genuine dispute that all of Plaintiff’s
claims for relief fall within the scope of the ARC Agreement.
c. Whether the Arbitration Agreement is Unconscionable
Plaintiff contends that the ARC Agreement is procedurally and substantively
unconscionable. The Court cannot agree.
As Judge Jackson explained,
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Under Colorado law, one of the legal grounds for revoking a contract is
unconscionability. See, e.g., Davis v. M.L.G. Corp., 712 P.3d 985, 991
(Colo. 1986); Univ. Hills Beauty Acad., Inc. v. Mountain States Tel. & Tel.
Co., 38 Colo. App. 194, 554 P.2d 723, 726 (1976). Colorado courts consider
a number of factors in deciding whether a contractual provision is
unconscionable, including:
(1) the use of a standardized agreement executed by parties
of unequal bargaining power; (2) the lack of an opportunity for
the customer to read or become familiar with the document
before signing it; (3) the use of fine print in the portion of the
contract containing the provision in question; (4) the absence
of evidence that the provision was commercially reasonable
or should reasonably have been anticipated; (5) the terms of
the contract, including substantive fairness; (6) the
relationship of the parties, including factors of assent, unfair
surprise, and notice; and (7) the circumstances surrounding
the formation of the contract, including setting, purpose, and
effect.
Bernal [v. Burnett], 793 F. Supp. 2d [1280, 1286 (D. Colo. 2011)] (citing
Davis, 712 P.3d at 991) [hereinafter “the Davis factors”]. The Davis factors
encompass both procedural and substantive unconscionability, both of
which must be shown in Colorado. See Vernon v. Qwest Commc’ns Intern.,
Inc., 925 F. Supp. 2d 1185, 1194–95 (D. Colo. 2013); Davis, 712 P.2d at
991. The burden of proof is on the party opposing arbitration. See Weller v.
HSBC Mortg. Servs., Inc., 971 F. Supp. 2d 1072, 1080 (D. Colo. 2013).
Nesbitt v. FCNH, Inc., 74 F. Supp. 3d 1366, 1371 (D. Colo. 2014), aff’d, 811 F.3d 371
(10th Cir. 2016).
Plaintiff claims that the Arbitration Agreement is unconscionable because they
did not have a chance to review or negotiate its terms. However, in his declaration, Mr.
Shaner states that “Plaintiff had the ability to open and review the ARC Agreement and
could spend as much or as little time and [they] wished reading the ARC Agreement.”
ECF No. 16-2 ¶ 8. Plaintiff does not dispute this or otherwise explain how they were
denied a meaningful chance to review the agreement. As to the purported lack of
opportunity to negotiate the ARC Agreement’s terms, it is well-settled that mere fact that
an arbitration agreement is a standardized agreement between parties with unequal
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bargaining power is not sufficient for a finding of unconscionability. See Levine, 2021
WL 4439800, at *14 (“A contract of adhesion, on its own, however, is not sufficient for a
finding of unconscionability . . . .”); Nesbitt, 74 F. Supp. 3d at 1371 (unequal bargaining
power alone does not create unconscionability); Laurich v. Red Lobster Rest., LLC, 295
F. Supp. 3d 1186, 1218 (D. N.M. 2017) (“[W]hile it may have been in an adhesion
contract in the sense that it was a take-it-or-leave-it offer, the terms are not so patently
unfair that the agreement is unconscionable.”). Moreover, according to Mr. Shaner, the
ARC Agreement is voluntary: “The candidate can be advanced through the onboarding
process without e-signing (i.e., without checking the “yes” box) on the document at the
candidate’s election. In other words, the candidate can select the “no” box and proceed
through to the next portion of onboarding.” ECF No. 16-2 ¶ 9. Therefore, Plaintiff could
have checked the “no” box or sought and obtained employment elsewhere if they had
not wanted to sign the ARC Agreement. Plaintiff did sign the agreement and is now
bound to it.
The Court also rejects Plaintiff’s claim that the ARC Agreement unfairly restricts
their ability to pursue statutory rights in court. It is well-established “that federal statutory
claims can be appropriately resolved through arbitration,” Green Tree Financial Corp.-
Alabama v. Randolph, 531 U.S. 79, 89 (2000). This includes Title VII claims, see Metz
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1487 (10th Cir. 1994), and
ADA claims, see McWilliams v. Logicon, Inc., 143 F.3d 573, 576 (10th Cir. 1998). See
also Morrison v. Equity Residential Props. Woodridge Apts., No. 05-cv-01787-PSF-
MJW, 2006 WL 1517734, at *4 (D. Colo. May 31, 2006) (requiring arbitration where the
“policy expressly provides for arbitration of a variety of employment claims, including
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termination and post-employment conduct, and expressly includes claims arising under
Title VII and the ADA, which are the claims plaintiff asserts in his Amended Complaint”).
d. Whether Defendant Waived Arbitration
Finally, Plaintiff claims that “[b]y participating in litigation, Defendant has waived
any right to compel arbitration.” ECF No. 19 at 2. Plaintiff, as the party asserting waiver,
bears a “heavy” burden of persuasion. Strong v. Davidson, 734 F. App’x 578, 580 (10th
Cir. 2018). The Tenth Circuit has outlined six, non-exclusive factors that courts should
weigh in considering whether a party waived its right to arbitration:
(1) whether the party's actions are inconsistent with the right to arbitrate; (2)
whether the litigation machinery has been substantially invoked and the
parties were well into preparation of a lawsuit before the party notified the
opposing party of an intent to arbitrate; (3) whether a party either requested
arbitration enforcement close to the trial date or delayed for a long period
before seeking a stay; (4) whether a defendant seeking arbitration filed a
counterclaim without asking for a stay of the proceedings; (5) whether
important intervening steps [e.g., taking advantage of judicial discovery
procedures not available in arbitration] had taken place; and (6) whether the
delay affected, misled, or prejudiced the opposing party.
Peterson v. Shearson/Am. Exp., Inc., 849 F.2d 464, 468 (10th Cir. 1988) (alteration in
original) (internal quotation marks omitted).
All of these factors weigh in Defendant’s favor. Defendant timely responded to
the operative Amended Complaint with the subject Motion seeking to compel arbitration.
Nothing else has happened in this case. The Court concludes that Defendant has not
waived its right to arbitrate Plaintiff’s claims.
V. CONCLUSION
The FAA reflects “a ‘liberal federal policy favoring arbitration’ and the
‘fundamental principle that arbitration is a matter of contract.’” AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339 (2011) (citations omitted) (quoting Moses H. Cone
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Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), then quoting Rent–A–
Center, West, Inc. v. Jackson, 561 U.S. 63, 67, 130 (2010)). With this liberal policy in
mind, the Court concludes that the ARC Agreement is valid and enforceable, and that
the scope of the ARC Agreement encompasses all of Plaintiff’s claims for relief.
Accordingly, it is hereby RECOMMENDED that Defendant UHS of Denver, Inc. d/b/a
Highlands Behavioral Health System’s Motion to Compel Arbitration and to Stay
Proceedings, ECF No. 16, be GRANTED.
NOTICE: pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14)
days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this
case is assigned. A party’s failure to serve and file specific, written objections
waives de novo review of the Recommendation by the District Judge, Fed. R. Civ.
P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate
review of both factual and legal questions. Makin v. Colo. Dep’t of Corr., 183 F.3d
1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
A party’s objections to this Recommendation must be both timely and specific to
preserve an issue for de novo review by the District Court or for appellate review.
United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated at Denver, Colorado this 19th Day of March, 2026.
________________________
N. Reid Neureiter
United State Magistrate Judge
Case No. 1:25-cv-03207-RMR-NRN Document 26 filed 03/19/26 USDC Colorado
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