Town of Riverdale Park v. Ashkar, 49

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Opinion by Hotten, J.
• Parties: TOWN OF RIVERDALE PARK v. MAMOUN K. ASHKAR, ET AL.
• Docket Number: No. 49,49
• Decision Date: 15 July 2021

TOWN OF RIVERDALE PARK
v.
MAMOUN K. ASHKAR, ET AL.

No. 49

COURT OF APPEALS OF MARYLAND

Argued: April 12, 2021
September Term, 2020
July 15, 2021

CIVIL PROCEDURE - JUDGMENT NOTWITHSTANDING THE VERDICT - EMPLOYMENT DISCRIMINATION

Following a jury verdict for the plaintiff that found employment discrimination on the basis of national origin, the circuit court granted a motion for judgment notwithstanding the verdict ("JNOV") in favor of the defendant. A motion for JNOV is reviewed "to determine whether it was legally correct, while viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party, and determining whether the facts and circumstances only permit one inference with regard to the issue presented." Cooper v. Rodriguez, 443 Md. 680, 706, 118 A.3d 829, 844 (2015) (citation and quotation marks omitted). "[I]f there is any evidence adduced, however slight, from which reasonable jurors[, applying the preponderance of evidence standard,] could find in favor of the plaintiff[,]" the motion for JNOV should be reversed. Hoffman v. Stamper, 385 Md. 1, 16, 867 A.2d 276, 285 (2005). The Court of Appeals applied the three-step, burden-shifting framework articulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and held that the grant of the motion for JNOV should be reversed because evidence of racial slurs directed at the plaintiff and made by an official overseeing the employment decision, coupled with no credible evidence supporting the defendant's purported nondiscriminatory reason for denying employment, was sufficient for a jury to find that the defendant intentionally discriminated on the basis of national origin.

CIVIL PROCEDURE - REMAND - FURTHER PROCEEDINGS

When an appellate court reverses a grant of a motion for JNOV, it may either reinstate the original verdict, remand the case for a new trial in accordance with a conditional order of the circuit court, or order a new trial. Md. Rule 2-532(f)(1). A verdict may be reinstated without the need of a new trial if there are only outstanding issues of law that must be addressed on remand. See Bowden v. Caldor, Inc., 350 Md. 4, 47, 710 A.2d 267, 288 (1998). The Court of Appeals affirmed the judgment of the Court of Special Appeals that the jury verdict is to be reinstated with directions for the circuit court to conduct further proceedings as necessary to resolve two remaining questions of law relating to the defendant's alternative motion for a new trial pursuant to Md. Rule 2-533(c) and to the application of the liability "cap" pursuant to the Local Government Tort Claims Act, codified at Md. Code Ann., Courts and Judicial Proceedings § 5-303(a)(1) (1974, 2006 Repl. Vol.).

Page 2

Circuit Court for Prince George's County
Case No. CAL 16-07777

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Opinion by Hotten, J.

Page 3

Mamoun K. Ashkar ("Ashkar"), a Palestinian-American and president of Greg's Towing ("Greg's"), brought suit against Petitioner, the Town of Riverdale Park, Maryland ("the Town")¹ and members of the Riverdale Park Police Department ("RPPD"), for claims that included intentional discrimination on the basis of national origin, in denying Greg's a municipal towing contract.²

The case proceeded to a five-day jury trial in the Circuit Court for Prince George's County. At the close of the evidence, the Town moved for judgment on the three remaining counts of discrimination, malicious prosecution, and tortious interference with a contractual relationship. Ashkar withdrew the tortious interference claim, and the circuit court granted the motion in favor of the malicious prosecution claim, but reserved ruling on the discrimination claim, sending that claim to the jury.

The jury found in Ashkar's favor on the discrimination claim and awarded $244,212 in damages and $15,000 in non-economic damages. The Town moved for judgment notwithstanding the verdict ("JNOV"), which the circuit court granted, citing Ashkar's lack of "direct evidence" of discrimination, lack of circumstantial evidence of discrimination that could be imputed to the Town, and no evidence of language "which would demean the inherent dignity of any person[]" pursuant to Prince George's Cty., Md., Code of Ordinances subtit. 2, div. 12, subdiv. 8, ("Prince George's Cty. Code") § 2-229(a)(3).

Page 4

Ashkar appealed the dismissal of the malicious prosecution claim and the grant of the motion for JNOV to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals affirmed the dismissal of the malicious prosecution claim, but the panel split 2-1 in reversing the grant of the motion for JNOV. The majority held that Ashkar presented sufficient evidence such that a jury could reasonably conclude that the Town offered a pretextual reason for denying the towing contract based on national origin. The Town timely appealed to this Court.

We granted certiorari on February 8, 2021, Town of Riverdale Park v. Ashkar, 472 Md. 5, 243 A.3d 1199 (2021), to address the following questions:

1. Did [the Court of Special Appeals] err in reversing the [circuit] court's ruling that [Ashkar] had failed to prove that [the Town's] business decision was pretextual and not based on discrimination?

2. Did [the Court of Special Appeals] err in directing that the case be remanded so that the jury's verdict could be reinstated, where the [circuit] court expressly ruled that [Ashkar] had failed to prove damages in any non-speculative manner, and where the verdict is, in any event, subject to a statutory cap lower than the amount of the verdict?

We answer both questions in the negative and shall affirm the judgment of the Court of Special Appeals.

FACTS AND PROCEDURAL BACKGROUND Underlying Incident

The following background comes from testimony and exhibits adduced at trial. We note at the outset that when we review the circuit court's "decision to grant a defendant's motion for judgment notwithstanding the verdict, an appellate court must view the evidence in the light most favorable to the plaintiff and resolve all conflicts in the plaintiff's favor."

Page 5

Kentucky Fried Chicken Nat'l Mgmt. Co. v. Weathersby, 326 Md. 663, 666, 607 A.2d 8, 9 (1992) (citing Lehman v. [Balt.] Transit Co., 227 Md. 537, 540-41, 177 A.2d 855, 857 (1962)). "Therefore, we present the facts of the case from [Ashkar's] point of view." Id., 607 A.2d at 9.

The Town was incorporated in 1920 as the "Town of Riverdale" and changed its name to the "Town of Riverdale Park" in 1998.³ The Town's Charter specifies the general power of the Town to enact ordinances on behalf of the town. Town of Riverdale Park, Md., Charter, art. III, § 301.

Exercise of Powers. For the purpose of carrying out the power granted in this charter, the council may pass all necessary ordinances. All the powers of the town shall be exercised in the manner prescribed by this charter, or if the manner is not prescribed, then in such manner as may be prescribed by ordinance. . . .

Town of Riverdale Park, Md., Charter, art. III, § 303.

In 1962, the Town, pursuant to Article III of its charter,⁴ enacted an ordinance that required all businesses operating in the Town to apply for and receive a business license.

Page 6

Town of Riverdale Park, Md., Code § 42-4. The Town's ordinances do not impose any specific requirement to operate a towing business within municipal limits, but gives the RPPD the "authority to impound and remove [any] vehicle [left unattended in violation of any law, ordinance or order] and charge the owner thereof the costs of towing, storage, and any other charges incurred in connection therewith." Town of Riverdale Park, Md., Code § 64-15.

The Town Charter specifies that purchases, including towing contracts, shall be made subject to the approval by the mayor and town council:

Purchasing and Contracts:

(a) All purchases, contracts, and/or expenditures for the town shall be made by the town administrator and/or specified individuals subject to approval of the mayor and council. All bills for purchases, contracts, and/or expenditures shall be approved by the mayor and responsible council members, committees, and administrative personnel by whatever procedure established from time to time by the mayor and council.
***(d) Any and all other rules and regulations pertaining to purchasing and contracts . . . shall be prescribed by ordinance or resolution by the mayor and council at a regular or special public meeting.

Town of Riverdale Park, Md., Charter, art. VI, § 622 (emphasis added).

Neither party made the Court aware of any resolutions or ordinances that specifically address the procurement of towing contracts.⁵ The record also provides no

Page 7

indication of any written policy or procedure from the mayor, the Town council, or the RPPD addressing or directing the acquisition of a towing services.⁶ The record also omits

Page 8

any indication of the Town's incorporation by reference to any law requiring a tow company to seek approval from Prince George's County Towing Services Program because such a requirement was not enacted until 2018.⁷

Greg Prendable founded Greg's in 1974 and formally incorporated the business in Maryland in 1986. Greg's is located near the center of the Town. From 1974 to 2013, Greg's provided uninterrupted towing and vehicle storage services to the Town and surrounding communities. To this day, Greg's remains the only towing and storage lot within Town limits.

Prendable had maintained a towing agreement with the RPPD.⁸ Prendable or one of his employees would retrieve illegally parked, wrecked, or otherwise disabled vehicles and could store these vehicles within Greg's secured facility. Sometime prior to March 2013, Prendable determined that he would sell his towing business and retire. Ashkar testified that he first heard of the sale of Greg's in "early 2013[,] . . . probably February/March." The Town became...