UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-1595

PAUL A. KABBA,

Plaintiff - Appellee,

v.

RENT-A-CENTER, INCORPORATED,

Defendant - Appellant,

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Amicus Supporting Appellee.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. 

Paul W. Grimm, District Judge. (8:17-cv-00211-PWG)

Submitted: March 29, 2018 Decided: April 13, 2018

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Steven E. Kaplan, Washington, D.C., Robert F. Friedman, Lauren B. Timmons, LITTLER 

MENDELSON, P.C., Dallas, Texas, for Appellant. Rev. Uduak James Ubom, UBOM 

LAW GROUP, PLLC, Washington, D.C., for Appellee. James L. Lee, Deputy General 
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Counsel, Jennifer S. Goldstein, Associate General Counsel, Elizabeth E. Theran, Acting 

Assistant General Counsel, Gail S. Coleman, EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION, Washington, D.C., for Amicus Curiae.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rent-A-Center., Inc. (“RAC”), appeals the district court’s order denying its motion 

for summary judgment and to compel arbitration. RAC contends that it and Appellee Paul 

Kabba, who signed two arbitration agreements with RAC, showed a clear and unmistakable 

intent to have an arbitrator determine the arbitrability of Kabba’s employment

discrimination claims. RAC further contends that, even if the district court rather than an 

arbitrator had the authority to determine the threshold issue of arbitrability, Kabba’s claims 

are arbitrable. We affirm.1

We review de novo a district court’s grant or denial of summary judgment. Grayson 

O Co. v. Agadir Int’l LLC, 856 F.3d 307, 314 (4th Cir. 2017). A court must grant summary 

judgment for the moving party when that party “shows that there is no genuine dispute as 

to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). In considering a motion for summary judgment, a court must not “weigh 

the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 249 (1986). Rather, a court must draw any permissible inference from the 

underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving 

 1 Although not raised by the parties, we must first determine whether we have 

appellate jurisdiction over the district court’s order denying summary judgment. See Porter 

v. Zook, 803 F.3d 694, 696 (4th Cir. 2015). We conclude that the denial of RAC’s motion 

is immediately appealable. See Wheeling Hosp., Inc. v. Health Plan of Upper Ohio Valley, 

Inc., 683 F.3d 577, 586 (4th Cir. 2012).
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party must offer more than a mere “scintilla of evidence in support of [its] position.” 

Anderson, 477 U.S. at 252.

“Where ordinary contracts are at issue, it is up to the parties to determine whether a 

particular matter is primarily for arbitrators or for courts to decide.” BG Grp. PLC v. 

Republic of Arg., 134 S. Ct. 1198, 1206 (2014). Unless the contract states otherwise, a 

court will presume that it, rather than an arbitrator, will decide any disputes regarding 

arbitrability, such as “whether the parties are bound by a given arbitration clause, or 

whether an arbitration clause in a concededly binding contract applies to a particular type 

of controversy.” Id. (internal quotation marks omitted). However, parties may overcome 

such a presumption by including a delegation provision in the agreement to have an 

arbitrator decide issues of arbitrability. Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-

69 (2010). Even so, “courts should not assume that the parties agreed to arbitrate 

arbitrability unless there is clear and unmistakable evidence that they did so.” Id. at 69 n.1 

(brackets and internal quotation marks omitted); accord First Options of Chi., Inc. v. 

Kaplan, 514 U.S. 938, 944 (1995). This “standard is exacting.” Peabody Holding Co., 

LLC v. United Mine Workers of Am., 665 F.3d 96, 102 (4th Cir. 2012). Moreover, this 

requirement “pertains to the parties’ manifestation of intent, not the agreement’s validity.” 

Rent-A-Ctr., 561 U.S. at 69 n.1.

RAC contends that the district court erred in concluding that Kabba and RAC did 

not clearly and unmistakably agree to arbitrate arbitrability. For support, RAC points to 

Rent-A-Center, in which “the United States Supreme Court found the exact delegation 

clause at issue in this case to be valid and enforceable.” (Appellant’s Br. at 10 (emphasis 
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omitted)). RAC’s reliance on Rent-A-Center is misplaced, however, as the Supreme Court 

explicitly noted that that case concerned the validity of the arbitration agreement, not 

whether the parties manifested an intent to be bound by the arbitration agreement. See 561 

U.S. at 70 n.2 (“The issue of the agreement’s validity is different from the issue whether 

any agreement between the parties was ever concluded, and . . . we address only the 

former.” (citation and internal quotation marks omitted)). Thus, the mere fact that the 

Supreme Court upheld the exact agreement as valid in Rent-A-Center does not answer the 

question of whether the parties in this case manifested an intention to be bound by the same 

agreement. Instead, we must turn to Maryland’s principles of contract formation.

In Maryland, “a manifestation of mutual assent is an essential prerequisite to the 

creation or formation of a contract.” Falls Garden Condo. Ass’n, Inc. v. Falls Homeowners 

Ass’n, Inc., 107 A.3d 1183, 1189 (Md. 2015) (internal quotation marks omitted). 

“Manifestation of mutual assent includes two issues: (1) intent to be bound, and 

(2) definiteness of terms.” Id. at 1190 (internal quotation marks omitted). “Importantly, 

an acceptance may be manifested by actions as well as by words.” Galloway v. Santander 

Consumer USA, Inc., 819 F.3d 79, 85 (4th Cir. 2016) (citing Porter v. Gen. Boiler Casing 

Co., 396 A.2d 1090, 1095 (Md. 1979)). In addition, Maryland courts have “show[n] a 

persistent unwillingness to give dispositive and preclusive effect to contractual limitations 

on future changes to that contract.” Hovnanian Land Inv. Grp., LLC v. Annapolis Towne 

Ctr. at Parole, LLC, 25 A.3d 967, 982 (Md. 2011). Indeed, “a party may waive, by its 

actions or statements, a condition precedent in a contract, even when that contract has a 

non-waiver clause.” Id. at 983.
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We conclude that a reasonable juror could find from Kabba’s and RAC’s actions 

that the parties agreed to modify the 2002 and 2012 arbitration agreements at issue to 

exclude covering any disputes relating to Kabba’s 2013 employment. See Falls Garden

Condo. Ass’n, 107 A.3d at 1190; Hovnanian Land Inv. Grp., 25 A.3d at 982. Thus, because 

a reasonable juror could find that no arbitration agreement covers Kabba’s 2013 

employment, we conclude that there is not “clear and unmistakable evidence” that Kabba 

and RAC agreed to arbitrate any disputes relating to Kabba’s 2013 employment. See RentA-Ctr., 561 U.S. at 69 n.1 (brackets and internal quotation marks omitted). As a result, the 

district court did not err in concluding that it, rather than an arbitrator, had the authority to 

determine the arbitrability of Kabba’s dispute regarding his 2013 employment based on the 

2002 and 2012 arbitration agreements.

Turning next to whether Kabba’s claims are arbitrable under the 2002 and 2012 

agreements, we conclude that, because a reasonable juror could conclude that no arbitration 

agreement exists with respect to Kabba’s claims arising from his 2013 employment, there 

is a genuine dispute of material fact precluding summary judgment. See Granite Rock Co. 

v. Int’l Bhd. of Teamsters, 561 U.S. 287, 297 (2010) (“[A] court may order arbitration of a 

particular dispute only where the court is satisfied that the parties agreed to arbitrate that 

dispute.”); Falls Garden Condo. Ass’n, 107 A.3d at 1190; Hovnanian Land Inv. Grp., 25 

A.3d at 982.2

 More facts are needed to determine whether Kabba’s claims are ultimately 

 2 RAC argues for the first time on appeal that it offered a novation, which Kabba 

rejected, rather than a modification, but it did not make this argument in the district court. 
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arbitrable. Thus, we conclude that the district court did not err in denying summary 

judgment and ordering discovery with respect to the parties’ intent regarding the 

arbitrability of Kabba’s claims under the 2002 and 2012 agreements.

Accordingly, we affirm the district court’s order. We dispense with oral argument 

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

 

We do not consider arguments raised for the first time on appeal. See In re Under Seal, 

749 F.3d 276, 285 (4th Cir. 2014).