Table of Contents

Table of Authorities............................................................................................ ii

Statement of Interest........................................................................................... 1

Statement of the Issues....................................................................................... 1

Statement of the Case......................................................................................... 2

A. Statement of Facts.................................................................................... 2

B. District Court Opinion.............................................................................. 5

C. Rent-A-Center’s Appeal............................................................................ 8

Summary of Argument....................................................................................... 9

Argument......................................................................................................... 10

A. The district court correctly held that it, and not the arbitrator, should determine the arbitrability of Kabba’s discrimination claims because this is normally a question for judicial determination and the parties’ intentions to delegate this question to the arbitrator are unclear............................................................................... 12

B. The district court correctly found a genuine issue of material fact regarding the parties’ intentions to arbitrate claims arising from Kabba’s 2013 employment because Rent-A-Center proffered a new arbitration agreement in 2013 and hired Kabba after he refused to sign it................................................................................................. 17

Conclusion....................................................................................................... 20

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355 (4th Cir. 2012)............ 17-18

AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643 (1986)......... 12, 16, 17, 20

First Options of Chi., Inc. v. Kaplan, 514 U.S. 938 (1995)........... 11, 12, 14, 16, 18

Galloway v. Santander Consumer USA, Inc., 819 F.3d 79 (4th Cir. 2016)..... 16, 18

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).............................. 1

Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287 (2010)................. 13, 14

Heyer v. U.S. Bureau of Prisons, 849 F.3d 202 (4th Cir. 2017)..................... 15, 20

Hill v. Rent-A-Center, Inc., 398 F.3d 1286 (11th Cir. 2005)................................ 13

Hovnanian Land Inv. Grp., LLC v. Annapolis Towne Ctr. at Parole, LLC,

25 A.3d 967 (Md. 2011)........................................................................ 16, 18, 20

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002)............................... 12

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964)............................... 14

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

473 U.S. 614 (1985)......................................................................................... 17

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)......... 17

Peabody Holding Co., LLC v. United Mine Workers of Am.,

665 F.3d 96 (4th Cir. 2012)......................................................................... 12, 16

Preston v. Ferrer, 552 U.S. 346 (2008)............................................................. 13

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967)............... 13

Rent-A-Center W., Inc. v. Jackson, 561 U.S. 63 (2010)............................. 8, 12-13

Statutes

Americans with Disabilities Act, 42 U.S.C. § 12117(a)........................................ 1

Federal Arbitration Act, 9 U.S.C. §§ 1-15............................................................ 4

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)......................... 1

Rule

Fed. R. App. P. 29(a).......................................................................................... 1

Statement of Interest

The Equal Employment Opportunity Commission (EEOC) is charged by Congress with interpreting, administering, and enforcing federal laws against employment discrimination. These statutes allow individual claimants to seek relief in court. See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f); Americans with Disabilities Act, 42 U.S.C. § 12117(a). Although employees may waive their right to a judicial forum in favor of arbitration, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33-35 (1991), those who have not agreed to arbitrate may not be compelled to do so. The EEOC has a strong interest in seeing that employees who have not agreed to arbitrate may proceed in court. Accordingly, it offers its views to the Court pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issues

1. Did the district court correctly find that it, rather than the arbitrator, should determine the arbitrability of Kabba’s discrimination claims because this is typically a question for judicial resolution and, based on their conduct in 2013, the parties cannot show a clear and unmistakable intent to have the arbitrator determine arbitrability instead?

2. On the question of arbitrability, did the district court correctly find a genuine issue of material fact regarding the parties’ intentions to arbitrate claims arising from Kabba’s 2013 employment?

Statement of the Case

A. Statement of Facts[1]

Paul Kabba began working as a sales representative for Rent-A-Center in 1996. App’x 6. Rent-A-Center quickly promoted him to store manager, where his duties included bringing cash from the store to the bank. App’x 6-7. While transporting cash one day in 2008, he was robbed at gunpoint and violently assaulted. The incident caused permanent damage to his right hip, lower back, and right knee, as well as post-traumatic stress disorder. App’x 8-9. Kabba took medical leave and, after six months, Rent-A-Center “administratively terminated” his employment. Rent-A-Center invited him to re-apply for employment when his medical condition allowed him to perform his job with “no restrictions.” App’x 51.

In 2002, during his initial employment, Kabba and Rent-A-Center entered into an arbitration agreement covering “all claims or controversies . . . past, present, or future, whether or not arising out of my application for employment, assignment/employment, or the termination of my assignment/employment . . . .” App’x 32. The agreement provided that “[t]he Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforcement, or formation of this Agreement, including, but not limited to any claim that all or part of this Agreement is void or voidable.” App’x 33-34. It also stated that it would “survive the termination of [Kabba’s] assignment/employment.” App’x 34. Of special relevance to this case, the agreement provided that it could “only be revoked or modified by a writing signed by the parties which specifically states an intent to revoke or modify th[e] Agreement.” Id.

In 2012, Kabba filled out an online application for a new position with Rent-A-Center. As part of that application, he was required to sign another arbitration agreement that was functionally identical to the 2002 agreement. App’x 37-40. Rent-A-Center did not contact Kabba in response to his 2012 application. App’x 67.

In 2013, Kabba walked into a Rent-A-Center location and applied in person for a job. Id. The store manager contacted the district manager and, with his authorization, hired Kabba. App’x 53, 68. He gave Kabba several forms to complete, including an arbitration agreement. Kabba signed the other forms but returned the arbitration agreement unsigned. App’x 57, 65, 68. The store manager allowed him to work anyway.

At the end of Kabba’s first day of work, the store manager instructed him to help pick up furniture from a customer’s third-floor apartment. Kabba advised the manager that he had medical restrictions precluding heavy lifting. App’x 9, 68-69. The store manager called the district manager, who immediately called Kabba and fired him. App’x 9-10. Kabba filed this lawsuit, alleging violations of the Americans with Disabilities Act and state law. App’x 4.

Citing the 2002 and 2012 arbitration agreements, Rent-A-Center moved to dismiss or in the alternative to stay proceedings and compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-15. App’x 14. Kabba responded that the 2002 and 2012 agreements did not apply to his 2013 employment. App’x 44. Rent-A-Center replied that under the 2002 and 2012 agreements, the arbitrator and not the court should resolve questions of arbitrability. App’x 71. In the alternative, Rent-A-Center argued that the 2002 and 2012 agreements cover the 2013 employment. “There is no requirement that Plaintiff sign a new arbitration agreement,” Rent-A-Center said, “where the 2002 Agreement he signed applies to ‘future’ disputes and expressly survives the termination of his employment.” App’x 72. Kabba responded that because Rent-A-Center provided new arbitration agreements each time he applied for a new job, it could not have believed that the 2002 agreement covered all future employment. App’x 76.

B. District Court Opinion

The district court converted Rent-A-Center’s motion to dismiss into a motion for summary judgment because both parties submitted evidence that was not integral to the complaint. App’x 82-83. The court defined the issue as “whether Kabba’s rejection of the 2013 Arbitration Agreement, and Rent-A-Center’s hiring him without a signed arbitration agreement, modified or revoked the 2002 and 2012 Arbitration Agreements such that they do not require arbitration of Kabba’s pending claims against Rent-A-Center.” App’x 88.

The district court rejected Rent-A-Center’s contention that the 2002 and 2012 arbitration agreements “clearly and unmistakably” delegated disputes regarding arbitrability to the arbitrator. App’x 88, 92. “The threshold issue,” the court explained, “is whether the parties intended to arbitrate the arbitrability of the claims Kabba brings in this lawsuit that relate to his brief re-employment in 2013, following a more than four-year break in his initial employment with Rent-A-Center.” App’x 89. Although the parties “clearly” intended to arbitrate all future disputes when they signed the 2002 and 2012 agreements, the court said, “‘arbitration is a matter of contract,’ and parties can modify a contract.” App’x 90 (citations omitted).
The court acknowledged that the 2002 and 2012 arbitration agreements required modifications to be in writing, but it observed that such provisions are unenforceable under Maryland law. “‘[P]arties may modify their original agreement by their conduct,’” the court said, “‘notwithstanding a written agreement that any change to a contract must be in writing.’” Id. (internal quotation marks and citation omitted).

Kabba’s refusal to sign the arbitration agreement in 2013, the court said, “is clearly a manifestation of his rejection of its terms, which are substantially the same as, if not identical to, the terms of the 2002 Arbitration Agreement with regard to the provisions at issue here.” App’x 91. Faced with Kabba’s refusal to sign the 2013 agreement, the court said, Rent-A-Center “had a choice. It could have refused to hire him, or it could have hired him without the signed arbitration agreement. Its choice has consequences.” Id.

The very fact that Rent-A-Center proffered a new arbitration agreement in 2013, the court said, supports a reasonable inference that Rent-A-Center believed that the 2002 and 2012 agreements would not cover Kabba’s 2013 employment. “If not,” the court explained, “it had no reason to include one in the employment application. The fact that Rent-A-Center elected to hire Kabba in 2013 without a new arbitration agreement could result in a reasonable inference that it, too, was willing to forego this requirement.” Id. Significantly, the court said, “[u]nlike Kabba’s 2012 online application, to which Rent-A-Center appended an arbitration agreement as a matter of course without knowing the identity of the applicant, the 2013 employment application was presented to Kabba in person for him to complete, after Rent-A-Center agreed to hire him.” App’x 91 n.3.

Based on these facts, the court concluded, “the parties’ conduct could evince a mutual intent to modify the agreements such that they do not apply to Kabba’s 2013 employment. As a result, it is neither clear nor unmistakable that the parties agreed to arbitrate the arbitrability of Kabba’s claims before this Court pertaining to his 2013 employment.” App’x 92. Absent “clear and unmistakable” evidence that the parties intended to reserve the question of arbitrability for the arbitrator, the court held, “the gateway issue of arbitrability is not subject to arbitration, and this Court, not an arbitrator, must determine whether the parties agreed to arbitrate the claims.” Id.

Turning to this “gateway issue,” the court observed that the parties’ conduct may or may not have modified the 2002 and 2012 arbitration agreements. The parties’ intentions, the court said, raise a genuine issue of material fact precluding summary judgment. Id. The court ordered Rent-A-Center to answer the complaint and indicated that the parties should proceed with discovery solely on the issue of arbitration. App’x 92-93.

C. Rent-A-Center’s Appeal

On appeal, Rent-A-Center argues that the delegation provisions in the 2002 and 2012 arbitration agreements require the arbitrator and not the court to decide threshold questions of arbitrability. App’t Br. 10-11. When the parties have delegated decisions regarding arbitrability to the arbitrator, Rent-A-Center observes, courts may consider whether the delegation provisions are invalid but may not “hear a challenge that attacks the arbitration agreement as a whole.” Id. at 6. Kabba does not challenge the delegation provisions specifically, Rent-A-Center notes, and any such challenge would be futile because the Supreme Court has already upheld the delegation provisions in Rent-A-Center’s arbitration agreements. Id. at 15-18 (citing Rent-A-Center W., Inc. v. Jackson, 561 U.S. 63, 65-66, 72-73 (2010)). Kabba’s claim that the 2002 and 2012 agreements as a whole do not apply to his 2013 employment, Rent-A-Center maintains, goes to the validity of the agreements in general, which is an issue that the delegation provisions expressly assign to the arbitrator to resolve.

In the alternative, Rent-A-Center argues that the parties did not modify the 2002 and 2012 agreements and that those agreements cover claims arising from Kabba’s 2013 employment. Id. at 21-23. “The District Court’s holding,” Rent-A-Center asserts, “appears to be premised on the theory that [Rent-A-Center], merely by presenting Kabba with a new proposed arbitration agreement, unilaterally modified or effected a rescission of all prior agreements between the Parties . . . .” Id. at 23. However, Rent-A-Center argues, its intent was only to offer a novation that would replace the existing agreements with a new, slightly different, arbitration agreement. By rejecting the proffered novation, Rent-A-Center continues, Kabba indicated his intent not to supersede the arbitration agreements that were already in place. In the absence of offer and acceptance, the parties did not form any new agreement. Id. at 24-27. Rent-A-Center also points to provisions in the 2002 and 2012 arbitration agreements requiring any modification or rescission to be in writing. Id. at 3. It does not address the implications of having hired Kabba after he refused to sign the 2013 agreement.

Summary of Argument

The district court correctly held that it, and not the arbitrator, should determine the arbitrability of Kabba’s discrimination claims. Arbitrability is generally a question for judicial resolution, and parties must “clearly and unmistakably” indicate a contrary intent to have an arbitrator decide the question instead. Here, the parties “clearly and unmistakably” indicated in 2002 and 2012 that they intended to have all future disputes resolved through arbitration, but their conduct in 2013 calls this agreement into question with respect to Kabba’s 2013 employment. If Kabba is correct that the parties intended to exempt his 2013 employment from any arbitration agreement, the parties necessarily would also have agreed not to submit the question of arbitrability to an arbitrator. In the absence of an arbitration agreement, there would be nothing to arbitrate. Because the parties’ 2013 intentions are less than “clear and unmistakable,” the general rule applies that the court, and not the arbitrator, must resolve arbitrability.

With respect to that question, “forceful evidence” that the parties intended not to arbitrate a particular claim precludes arbitration; any doubts about their intentions must be construed in favor of arbitrability. In examining the parties’ intentions, the decisionmaker must apply the relevant state law. Maryland recognizes that parties may modify written contracts through their conduct even when the contracts provide that all modifications must be in writing. Here, the fact that Rent-A-Center proffered a new arbitration agreement in 2013 and hired Kabba after he refused to sign it raises the possibility that the parties agreed to exempt the 2013 employment from the 2002 and 2012 agreements. If the parties intended to free Kabba from the earlier arbitration agreements, an arbitrator would have no authority to resolve their substantive dispute. Thus, the district court correctly found a genuine issue of material fact requiring discovery.

Argument

Kabba’s lawsuit, like other cases involving arbitration, raises three fundamental questions: (1) the merits—here, whether Rent-A-Center discriminated against Kabba by terminating him in 2013 after he requested an accommodation for his disability; (2) whether the parties agreed to arbitrate this merits question; and (3) whether the court or the arbitrator should determine the answer to the second question. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995) (enumerating these three issues). Only the second and third questions are at issue in this appeal. Necessarily, this Court must resolve the third question before it may (if appropriate) reach the second question.

The Supreme Court has explained the different standards that apply for the third question (who should decide arbitrability) and the second question (whether a particular claim is arbitrable). With respect to who should decide arbitrability, “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” Id. at 944 (quoting AT&T Techs. v. Commc’ns Workers, 475 U.S. 643, 649 (1986)). With respect to whether a particular claim is arbitrable, however, “the law reverses the presumption. . . . ‘[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’” Id. at 945 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)).

In this case, the district court correctly found that, as to the third question (who should decide arbitrability), the parties’ conduct in 2013 means that their intention to send the question of arbitrability to the arbitrator is not “clear and unmistakable.” Accordingly, arbitrability is an issue for judicial resolution. As to the second question, whether the merits dispute is arbitrable, the court properly found that it needs further evidence before it can seek to resolve doubts about the parties’ intentions.

Courts, rather than arbitrators, typically decide the threshold question of the arbitrability of a particular dispute. This is so because “‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960)). Parties may agree to have the arbitrator, rather than the court, determine arbitrability, but they must express this intention “clearly and unmistakably” to overcome the presumption in favor of judicial determination. First Options, 514 U.S. at 943-44; AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 649 (1986). The clear and unmistakable standard is “exacting” and “demanding.” Peabody Holding Co., LLC v. United Mine Workers of Am., 665 F.3d 96, 102 (4th Cir. 2012).

A “delegation provision” specifically giving the arbitrator the power to determine arbitrability is normally sufficient to express the parties’ intent clearly and unmistakably. Rent-A-Center W., 561 U.S. at 68-70. A court may resolve challenges to the validity of a delegation provision, but only when a party challenges the validity of the delegation provision in particular rather than the validity of the contract in its entirety. Id. at 70-71; Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967). This is so because where the parties do not dispute the existence of an arbitration agreement, the delegation provision expressly provides that the arbitrator will determine the validity of the contract.

Kabba does not contest that the 2002 and 2012 agreements are valid and that, where they apply, the delegation provisions are enforceable. App’ee Br. 6. He asserts, however, that these agreements do not apply to his 2013 employment. Id. at 7; see Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296-97 (2010) (question of whether arbitration agreement was “ever concluded” differs from question of whether arbitration agreement is valid) (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 n.1 (2006)). In the absence of any arbitration agreement covering his 2013 employment, he maintains, there is nothing for an arbitrator to interpret. App’ee Br. 8; see Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1290 (11th Cir. 2005) (court, rather than arbitrator, determined whether plaintiff was a transportation worker and therefore statutorily exempt from arbitration agreement); cf. Preston v. Ferrer, 552 U.S. 346, 349 (2008) (“[W]hen parties agree to arbitrate all disputes arising under their contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance.”) (emphasis added).

If Kabba is correct that the parties exempted his 2013 employment from the 2002 and 2012 arbitration agreements, there is no basis for sending any part of this dispute to an arbitrator. No disputes would “aris[e] under their contract,” id., because no contract would be in place. See John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547 (1964) (party “cannot be compelled to arbitrate if an arbitration clause does not bind it at all”). Having excused Kabba from the obligation to arbitrate, the parties would necessarily also have excluded him from the obligation to arbitrate the question of arbitrability, and questions of arbitrability would be moot. See Granite Rock Co., 561 U.S. at 297 (“[A] court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute.”).

Thus, the court, not the arbitrator, must decide as a threshold matter whether the parties may have exempted the 2013 employment from the 2002 and 2012 arbitration agreements. If they might have done so, their intent to delegate questions of arbitrability to the arbitrator would be less than “clear and unmistakable,” as required to send questions of arbitrability to the arbitrator. First Options, 514 U.S. at 944.

The district court correctly found it plausible that the parties intended to free Kabba from a requirement to arbitrate claims arising from his 2013 employment. Rent-A-Center may not even have believed that the 2002 and 2012 agreements still applied, because otherwise it would have had “no reason to include [an arbitration agreement] in the employment application.” App’x 91. In any event, Kabba refused to sign the proffered 2013 arbitration agreement, thereby indicating an unwillingness to arbitrate on terms that the district court found were “substantially the same as, if not identical to, the terms of the 2002 Arbitration Agreement.” Id. Rent-A-Center’s willingness to hire Kabba even after he refused to sign the arbitration agreement, and without even mentioning the 2002 and 2012 agreements, certainly could have indicated that it agreed to Kabba’s no-arbitration condition of employment. See Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 208 (4th Cir. 2017) (on summary judgment, court must make all reasonable inferences in favor of non-moving party).

Rent-A-Center emphasizes that the 2002 and 2012 agreements require modifications to be “‘by a writing signed by the parties which specifically states an intent to revoke or modify th[e] Agreement.’” App’t Br. 3. The parties did not sign a document in 2013 indicating any intent to change the 2002 and 2012 agreements. A fortiori, Rent-A-Center argues, the parties did not intend to modify the agreements to exclude Kabba’s 2013 employment. Id. at 26.

This argument ignores controlling law. The Supreme Court has explained that courts should apply state contract law when interpreting the parties’ intentions regarding arbitration agreements. First Options, 514 U.S. at 944. And Maryland law “shows 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). Even when the parties have specified that contractual changes must be in writing, Maryland upholds modifications based on conduct. Galloway v. Santander Consumer USA, Inc., 819 F.3d 79, 88 (4th Cir. 2016). To do otherwise, the Maryland Court of Appeals has explained, raises “equitable concerns about allowing a party to hide behind a contractual provision, when [its] actions suggested otherwise. . . . [A] party who remains silent ‘may have so conducted himself as impliedly to assure the newcomer that he does not object, and the newcomer may have built upon that assurance.’” Hovnanian Land Inv. Grp., 25 A.3d at 980 (citation omitted).

The possibility that the parties intended to release Kabba from his obligation to arbitrate, including from his obligation to arbitrate arbitrability, means that their intentions in 2013 were not “clear and unmistakable.” Accordingly, the general rule applies that the court, not the arbitrator, must determine arbitrability. AT&T Techs., 475 U.S. at 649; Peabody, 665 F.3d at 102.

Whether Kabba’s discrimination claims are arbitrable turns on whether they are subject to an arbitration agreement. This, in turn, depends on the parties’ intentions with respect to those claims. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). In examining this question, a court must have “a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Thus, any doubts about the parties’ intent must be resolved in favor of arbitrability. Id. “‘[I]n the absence of any express provision excluding a particular grievance from arbitration . . . only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.’” AT&T Techs., 475 U.S. at 650 (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85 (1960)).

Here, there is no “express provision” excluding Kabba’s 2013 employment from the 2002 and 2012 arbitration agreements, but the parties’ conduct may nevertheless constitute “forceful evidence” of their intent. See id. If their conduct does, in fact, indicate that they intended to remove Kabba’s 2013 employment from the scope of the 2002 and 2012 arbitration agreements, the instant discrimination claims are not arbitrable. See Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 368 (4th Cir. 2012) (“‘[W]hen a party seeking to avoid arbitration contends that the clause providing for arbitration has been superseded by some other agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication.’”) (emphasis added; citation omitted).

Whether there is sufficient evidence that Kabba and Rent-A-Center intended to exclude the 2013 employment from any arbitration requirement depends on state contract law. First Options, 514 U.S. at 944. In Maryland, as discussed above, parties may agree to modify a contract through their conduct even when the contract provides for written modifications only. Galloway, 819 F.3d at 88; Hovnanian Land Inv. Grp., 25 A.3d at 981. Whether in writing or through conduct, “[a] contract is formed when an unrevoked offer made by one person is accepted by another. An ‘offer’ is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. Importantly, an acceptance may be manifested by actions as well as by words.” Galloway, 819 F.3d at 85 (internal quotation marks and citations omitted).

In this case, Rent-A-Center argues that it did not offer to modify the 2002 and 2012 agreements by asking Kabba to sign a new arbitration agreement in 2013. Instead, it says, it offered to replace the previous arbitration agreements with a slightly different one. By not signing the 2013 contract, Rent-A-Center says, Kabba rejected this offer and indicated his intent to leave the prior agreements in place. App’t Br. 24-26.

While this is one possible interpretation of the parties’ conduct in 2013, it is not the only possible interpretation. There are at least three other ways to interpret their intent.

First, it is plausible that, notwithstanding the broad language of the 2002 and 2012 agreements, Rent-A-Center asked Kabba to sign new arbitration agreements each time he re-applied because it did not believe that the previous agreements covered his new employment. This is Kabba’s understanding. See App’ee Br. 10.

Second, it is plausible that Rent-A-Center believed that the 2002 and 2012 agreements applied to the 2013 employment but agreed to a modification. The proffered 2013 agreement was “substantially the same as, if not identical to, the terms of the 2002 Arbitration Agreement.” App’x 91. By refusing to sign it, Kabba arguably made a counteroffer to Rent-A-Center: hire me, but only on the condition that I am not subject to any arbitration agreement at all. In hiring Kabba after he refused to sign the agreement, Rent-A-Center could have indicated its intent to accede to his no-arbitration condition of employment.

Finally, it is plausible that Rent-A-Center may not even have noticed that Kabba refused to sign the arbitration agreement, and may have hired him under the mistaken assumption that he had signed it. In that case, there would have been no meeting of the minds. See Hovnanian, 25 A.3d at 982 (“[O]ur case law does require mutual knowledge and acceptance, whether implicit or explicit, of the non-conforming action.”). Whether Kabba would be bound by the 2002 and 2012 agreements would then depend not upon any 2013 modification, but on the parties’ intentions regarding the earlier agreements.

The district court reasonably concluded that it could not resolve this dispute without further evidence of the parties’ intent. App’x 92; see Heyer, 849 F.3d at 208 (on summary judgment, court must make all reasonable inferences in favor of non-moving party). Accordingly, it instructed the parties to conduct discovery limited to the issue of arbitration. App’x 92-93. If discovery shows “ʻforceful evidence of a purpose to exclude the claim from arbitration,’” the district court and not the arbitrator will have to resolve the discrimination claims. AT&T Techs., 475 U.S. at 650 (citation omitted). If, on the other hand, discovery either proves that the parties did not agree to exempt the 2013 employment from the 2002 and 2012 arbitration agreements or leaves their intent open to question, the court will have to send the substantive issue to the arbitrator. At this point, the district court correctly held that it cannot decide the question as a matter of law.

Conclusion

The district court correctly held that it, and not the arbitrator, should decide the arbitrability of Kabba’s discrimination claims. The court also properly held that it needed more information regarding the parties’ intent before it could resolve the question of arbitrability. For these reasons, the EEOC respectfully urges this Court to affirm the district court’s decision.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

/s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] Background facts relevant to Kabba’s substantive discrimination claims but not to arbitration come primarily from Kabba’s complaint. App’x 4-10. At this stage of the proceedings, the parties have introduced only limited evidence relevant to the substantive claims.