Dreifus v. Glenarm Dining Services, Inc.
2026 COA 59. No. 25CA1446. Colorado Uniform Arbitration Act—Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021—Claims Related to Sexual Harassment—Motion to Dismiss.
July 9, 2026
Glenarm Dining Services, Inc. (Glenarm) owns and operates the Diamond Cabaret, a Denver adult nightclub. Dreifus worked at the Diamond Cabaret as a bartender. As part of her employment, Dreifus signed an arbitration agreement with Glenarm. She subsequently filed a complaint against Glenarm alleging sexual harassment, sex discrimination, and retaliation under the Colorado Anti-Discrimination Act (CADA); intentional infliction of emotional distress; negligent infliction of emotional distress; negligent supervision; and false representation. Glenarm moved to dismiss the complaint under CRCP 12(b)(5) for failure to state a claim. The court denied the motion. Glenarm filed an answer, and Dreifus moved to amend her complaint. Glenarm opposed the motion to amend, arguing that the factual allegations Dreifus sought to add were unrelated to her sexual harassment claim, which Glenarm had conceded was not subject to arbitration under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA). The district court granted Dreifus’s motion to amend. Dreifus then moved for partial summary judgment concerning the relationship between Glenarm and two holding companies, and Glenarm contemporaneously moved to dismiss under CRCP 12(b)(1) and to compel arbitration, arguing the EFAA only applied to Dreifus’s sexual harassment claim. The court denied Dreifus’s motion for partial summary judgment and Glenarm’s motion to dismiss and compel arbitration, concluding that no portion of the case was subject to the arbitration agreement.
On appeal, Glenarm argued that the district court erroneously applied Rule 12(b)(5) standards when resolving the motion to dismiss and compel arbitration, even though Glenarm brought it under Rule 12(b)(1). Glenarm maintained that this was a material error because it led the court to resolve the Rule 12(b)(1) motion by considering the evidence in the light most favorable to Dreifus, rather than holding an evidentiary hearing to resolve any disputed issues of fact before ruling on the motion. When resolving a motion to dismiss for lack of subject matter jurisdiction in which no disputed facts are identified, the material facts in the complaint are accepted as true. Here, Glenarm did not show any disputed issues of fact relevant to resolving the motion, and it did not request an evidentiary hearing to address any factual disputes. Glenarm also failed to identify any evidence identifying specific material factual allegations that it disputed. Whether viewed as true on its face or in the light most favorable to Dreifus, the amended complaint relates to Dreifus’s underlying sexual harassment claims.
Glenarm also asserted that the district court erred by denying the motion to dismiss and compel arbitration because it failed to recognize that the new factual allegations did not relate to Dreifus’s original sexual harassment claim. Glenarm maintained that it did not seek to compel arbitration after Dreifus filed her initial complaint because her original claims were arguably excused from arbitration under the EFAA, but her amended complaint includes factual allegations about events that occurred after she filed the suit that are outside the EFAA’s scope. The EFAA exempts sexual harassment claims from compelled arbitration pursuant to a pre-dispute arbitration agreement. The court of appeals concluded that the EFAA applies to an entire case rather than to individual claims where the claims are related to sexual harassment allegations. Here, in her amended complaint, Dreifus alleged new facts, but those facts were related to her sexual harassment allegations, which Glenarm conceded were not subject to the arbitration provision. Accordingly, the district court did not err by denying the motion to compel arbitration.
The order was affirmed.