Riverdale Park v. Askhar

Town of Riverdale Park v. Mamoun K. Ashkar, et al., No. 49, September Term 2020. Opinion by Hotten, J. 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.). Circuit Court for Prince George’s County Case No. CAL 16-07777 Argued: April 12, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 49 September Term, 2020 __________________________________ TOWN OF RIVERDALE PARK v. MAMOUN K. ASHKAR, ET AL. __________________________________ Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: July 15, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-07-15 11:19-04:00 Suzanne C. Johnson, Clerk 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). 1 We also sometimes refer to The “Town” to include Town administrators and individual members of the RPPD as co-defendants until their dismissal during trial. 2 The other claims included malicious prosecution, tortious interference with prospective advantage, civil conspiracy, antitrust violations, and retaliation. 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.” 2 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. 3 The Town’s origins date back to 1800, when Henri Joseph Stier emigrated from Belgium and purchased 729 acres of woodlands and farmland near the newly formed Washington, D.C. Riverdale Park, Town History (2019) http://www.riverdaleparkmd.info/our_town/explore_town_of_riverdale_park/1800_s.php, archived at https://perma.cc/HU6R-H6VB. Ashkar’s family emigrated from Palestine and moved to Prince George’s County in 1975 where Ashkar was born. Ashkar identifies as a first generation American and as a Palestinian. 4 Article III, section 302 of the Town Charter provides in pertinent part: Licenses. Subject to any restriction imposed by the State of Maryland, to license and regulate all persons beginning or conducting transient or permanent business in the town for the sale of any goods, wares, (continued . . . ) 3 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 (. . . continued) merchandise, or services; to license and regulate any business. . . [;] to establish and collect fees and charges for all licenses and permits issued under the authority of this charter. 5 The lack of resolutions and ordinances addressing the procurement of towing (continued . . .) 4 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 (. . . continued) services contrast with the Town’s contemporaneous extensive public record of Town council actions concerning other local procurement matters. For example, in 2011, the Town council passed a resolution, signed by Mayor Vernon Archer and Town Administrator Sarah Imhulse, directing the Town “to create a [Request for Quote] for a Planning Consultant.” Council Res., 2011-R-22 (Sept. 6, 2011). “[T]he Town [] must ensure that it has the best planning advice available and that the procurement of those consulting resources is done in [a] careful and deliberate manner[.]” Id. (emphasis added). 6 On July 1, 2013, pursuant Town of Riverdale Park, Md., Ordinance 2013-OR-05 (July 1, 2013), the Town repealed and replaced the Personnel Policy Manual with a revised version, effective July 21, 2013.

The Personnel Policy Manual guides employment conduct for the Town and applies to hiring and contractors. The manual provides the following: C-2. Recruitment. It shall be the policy of the Town to provide fair and equal opportunity to all qualified persons to enter Town employment on the basis of demonstrated merit and fitness determined by fair and practical methods of selection, without regard to . . . national origin or ancestry[.] C-3.

Qualifications for Employment. Each applicant shall complete a job application . . . as required by the Town Administrator. . . . All applicants for any position with the Town shall meet the minimum qualifications established for that position. *** L-1. Coverage and Distribution of Policy. . . . [T]his Article L applies to all officers and employees of the Town including . . . employees working under contract for the Town. *** L-3.

Unlawful Discrimination or Harassment. . . . As used in this Section the term “unlawful discrimination or harassment” refers to any alleged discrimination disparate treatment or harassment against an employee on the basis of . . . national origin[.] . . . Acts of unlawful harassment and or/discrimination towards an employee include, but are not limited to: [] Verbal conduct such as epithets, derogatory comments, slurs[.] *** (Emphasis added.) 5 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 formally aware that Prendable was selling Greg’s, at the latest, on May 8, as reflected in a memorandum from Town Administrator Imhulse 7 The General Assembly amended Md. Code Ann., Transportation § 16-303.1 and 25-115 to expressly require Prince George’s County and its police department to use open solicitation when procuring the services of a private tow company. Prince George’s County issued its solicitation on January 11, 2019. Prior to the legislative enactment, Prince George’s County Police Department maintained its own application process, see infra page 7, but it was not codified in statute or ordinance. See Prince George’s County, Md., Code of Ordinances subtit. 5, div. 21, § 5-265 (requiring a towing license from the Department of the Environment, not the Prince George’s County Police Department). 8 The agreement was apparently reduced to writing at some point, but it was not included in the record. 6 to Mayor Archer, RPPD Chief David C. Morris, and Public Works Director Leonard Addison that stated “we have heard that [Greg’s Towing] may be up for sale.

It may be a good idea for the Town to look into purchasing the property.” Prendable received bids from AlleyCat Towing and Recovery (“AlleyCat”), Five Star Towing, owned by Ashkar and his three brothers,9 and one other company. AlleyCat offered the highest bid, and Prendable accepted. On October 29, 2013, Assistant Chief of Police, Lieutenant Colonel Patrick G. Timmons, sent a letter on official RPPD letterhead, denoting David C. Morris as Chief of Police, to Charles Heidenberg, owner of AlleyCat, stating that “we desire AlleyCat [] begin towing for us on November 1, 2013,” on an interim basis subject to future contract negotiations. (Emphasis added.) On October 31, 2013, Greg’s stopped towing for the Town.

According to Ashkar’s testimony, the RPPD was under the assumption that AlleyCat would eventually complete the acquisition of Greg’s. On October 29, 2013, Prendable communicated to the Prince George’s County Police Department that his towing license with the county would expire October 31, 2014, and he would no longer provide towing services. With impending retirement, Prendable intended for Greg’s membership with the Prince George’s County Police Department Authorized Tow Services Program (“Tow List”) to lapse. Ordinarily, a towing company must apply for and/or renew membership to the Tow List every two years.

The application for the 2014–15 Tow List membership was due November 2013. After Prendable secured 9 Ashkar and his three brothers continue to co-own Five Star Towing. Ashkar’s brothers did not join him in the lawsuit. 7 a bid for his business, he belatedly submitted his application for the 2014–15 Tow List on June 6, 2014. His application was untimely, so it was placed in a pending file, should the Prince George’s County Police Department need to immediately expand towing capacity before the next Tow List cycle.

The Town’s witness, Lieutenant Macherko from the Prince George’s County Police Department Towing Coordination Unit, testified that Greg’s was fully qualified to be on the Tow List, but for its belated submission: “Q: And at no point did you receive any information that Greg’s was no longer qualified to be on the list, is that correct? [Macherko:] That’s correct.” Apart from the lapse in 2014 due to Prendable’s retirement, Greg’s maintained membership on the Tow List before and after the 2014–15 cycle. AlleyCat never completed the purchase of Greg’s, so Prendable offered to sell the business to Ashkar and his brothers, who had operated Five Star Towing in Prince George’s County since 2009. Ashkar was interested in purchasing Greg’s because he knew that the Town’s towing service exclusively ran through Greg’s. Ashkar learned of the Town’s exclusive dealings with Greg’s after Ashkar had approached the RPPD in 2011 to inquire whether the Town would extend its towing business to Five Star Towing.

Lieutenant Colonel Timmons informed Ashkar, “there’s no way [that’s] possible, they’ve been using Greg’s [] for a very long time, they do not plan on changing, using anyone other than Greg’s[.]” According to Ashkar’s testimony, Greg’s operated as the Town’s exclusive towing provider because it was the only towing company with a storage lot within 8 municipal limits, and the RPPD was not willing to use a towing company located outside of the municipal limits.10 Lieutenant Timmons informed Ashkar: We are not sending our officers to conduct [] investigations -- if something is wrong with the vehicle, we have to send our officers all the way to Beltsville to check the vehicle or conduct the investigation. We have a tow yard in Riverdale. That’s the only location that’s authorized to tow for the [RPPD]. Ashkar also visited the Town Hall, on at least two occasions, to discuss towing services and was informed that “only Greg Prendable or the person operating [Greg’s] would be eligible to receive Town business because it was the only lot within Town limits.” The Town formally codified its preference for local businesses, like Greg’s Towing, when it passed a resolution establishing a local business purchasing policy that went into effect on May 5, 2014.

Town Council Res., 2014-R-06 (May 5, 2014) (“The Town [] reserves the right to show preference to local bidders in the purchase of supplies, equipment and services. . . . A ‘local bidder’ is defined as an individual or business who maintains a place 10 According to Ashkar, zoning laws prevent another tow yard from opening within municipal limits: “our office was located, for Five Star Towing in Riverdale, but our tow yard was located in Beltsville . . . you cannot open another tow yard in Riverdale. The zoning will not permit you.” Town of Riverdale Park, Md., Code § 42-8(c) requires businesses to comply with all zoning laws. The zoning for the Town mostly limits structures to either residential homes or mixed-use town center developments, which are designed to “promote reinvestment in, and the appropriate redevelopment of, older commercial areas, to create attractive and distinctive community centers for shopping, socializing, entertaining, living, and to promote economic vitality.” Prince George’s County, Md. Code of Ordinances subtit. 27, pt. 10, div. 2, subdiv. 3 § 27-546.09 (1994).

See also The Maryland-National Capital Park and Planning Commission, PGAtlas, https://www.pgatlas.com (last visited May 28, 2021), archived at https://perma.cc/QHA9- 4EDW. 9 of business or maintains an inventory of merchandise and/or equipment in the incorporated municipal boundaries of the Town [], is licensed by the Town[.]”). Ashkar purchased Greg’s for $87,853, and on March 27, 2014, Ashkar moved into Greg’s office, and became the “face” of the company. Ashkar explained in his testimony that at this point he was running towing and business operations, but had not become the president because of outstanding paperwork.11 After Ashkar assumed control of business operations of Greg’s, he approached the RPPD in late March 2014 to discuss the continuation of Greg’s as the Town’s exclusive towing provider. Ashkar spoke with Lieutenant Colonel Timmons, who appeared surprised that Ashkar had purchased Greg’s, based on his belief that Prendable had sold the towing company to AlleyCat.

Ashkar reminded Lieutenant Colonel Timmons of their previous conversation regarding Greg’s as the Town’s exclusive towing provider. Ashkar requested that the contract with Greg’s and the Town continue. Lieutenant Colonel Timmons rejected Ashkar’s request. According to Ashkar’s testimony, Lieutenant Colonel Timmons stated that “he just couldn’t see kicking out AlleyCat and giving [Ashkar] the contract.” Following the March 2014 visit to the RPPD, Ashkar returned to the police station to schedule an appointment with Chief Morris to discuss the towing contract.

While Ashkar was asked to wait in the lobby, he overhead Lieutenant Colonel Timmons, 11 Ashkar became an officer of Greg’s on April 15, 2014. The purchase did not become final until January 1, 2015. Ashkar currently serves as the president, which he testified as the individual charged with generating business and being the public face of the company. His brother, Aman, runs the day-to-day operations, while the two youngest brothers fill in as needed. 10 Lieutenant Robert Turner, in charge of day-to-day towing issues for the RPPD, and RPPD Office Manager, Anna Wendland, discussing how to “get rid of him.” Ashkar heard Lieutenant Colonel Timmons state that “somebody needs to tell that camel jockey he isn’t towing for Riverdale.” Ashkar also overheard Lieutenant Colonel Timmons state that “this fucking camel jockey doesn’t get the point.” Lieutenant Turner came to speak with Ashkar and instructed Ashkar to follow him into an interview room.

Lieutenant Turner stood over Ashkar and began “telling [Ashkar] that [he] do[es]n’t understand [] what [Ashkar’s] doing here, that Timmons is in charge and [Ashkar is] never going to get the contract.” When Ashkar explained his purpose in scheduling an appointment with Chief Morris, according to Ashkar, Lieutenant Turner stated “there’s no need to see the chief of police, Timmons is in charge, you’re not going to get the contract, stop bothering us and don’t come back here.” When Ashkar began to write down Lieutenant Turner’s badge number, Lieutenant Turner said, “I’m just taking orders from Timmons.” According to testimony from Lieutenant Colonel Timmons, Chief Morris directed him to “deal with [] Ashkar.” Chief Morris, pursuant to the Town Code, may delegate his authority and responsibility for administering the department to officers and other personnel. Town of Riverdale Park, Md., Code § 53-10(a) (“The Chief of Police is the commanding officer and administrative head of the Police Department. He shall have the authority to delegate responsibility and assign functions to officers and personnel of the Department in such manner as in his judgment is necessary to establish and maintain efficiency and good administration.”) (emphasis added). 11 Ashkar testified that after being rebuffed by Lieutenant Colonel Timmons in late March 2014, he attended “numerous town meetings [] since I saw there was a lot of confusion, to clarify to everyone that Greg’s [] is still in business . . . we definitively want the contract for the towing department in Riverdale[.]” There is at least one documented instance of Ashkar attending a Town meeting for this purpose on July 21, 2014. The minutes of this meeting state: “Public Comments[:] Mike Ashkar with Greg’s [] stated that his company was interested in providing tow service to the Town.” Throughout the summer and fall of 2014, Ashkar unsuccessfully attempted to contact other Town officials in person and by email, including Chief Morris, about the towing contract with the Town.

On July 22, 2014, Chief Morris received a proposal from AlleyCat to continue as the Town’s exclusive towing provider. In the application, AlleyCat stated that it was founded in 2000, was located in Hyattsville, MD, and had provided towing services to the Town since November 1, 2013 (approximately eight months at the time). The application listed AlleyCat’s compliance with all regulations and licensing requirements by Prince George’s County and Maryland. The application did not ask for, and AlleyCat did not stipulate, membership on the Tow List.

On September 19, 2014, Ashkar finally received notification from RPPD Office Manager Wendland, which copied Lieutenant Colonel Timmons, that Greg’s could submit a formal bid to become the Town’s towing provider. Ashkar timely submitted the application. The application, like AlleyCat’s application, did not present the Tow List as one of the requirements or qualifications. Ashkar followed up with the RPPD about the status of the application, but received no response after multiple attempts. 12 Ashkar reported the racial slurs used against him by the RPPD to Sergeant Richard Sease of the University Park Police Department and Treasurer of the Maryland Lodge Fraternal Order of Police 9 (“FOP”).

Ashkar developed a relationship with Sergeant Sease while providing towing services through Five Star Towing to the University Park Police Department. At the time, Sergeant Sease also oversaw the investigative committee for the FOP, which examined and mediated complaints made against police officers. On January 17, 2015, Sergeant Sease contacted Sergeant Sommerville, a trusted colleague at the RPPD, to discuss Ashkar’s claim of discrimination. Ashkar was present and listening on speakerphone.

In response to Sergeant Sease’s inquiry about Greg’s, Sergeant Sommerville stated: “no, no, no, don’t use this company, Mike [is] not his real name,[12] these guys can’t pass a background check and pretty much he’s a foreigner and just stick with -- we’ve got to stick together.” Sergeant Sease’s testimony corroborated Ashkar’s recollection of the conversation: “I looked at [] Ashkar and I said there’s something wrong with this, and something is going on more than just you not being able to do business in the Town of Riverdale [Park].” Ashkar emailed Chief Morris on January 21, 2015 to share his concerns about the status of the towing application. Having received no response from Town officials, Ashkar retained legal representation. On February 4, 2015, Ashkar’s attorney sent a letter addressed to Mayor Archer, which copied Chief Morris, expressing concerns over discriminatory comments and lack of “equal, fair and appropriate” treatment of Ashkar’s 12 Ashkar uses Mike as a nickname. 13 bid for the towing contract. At some point in February 2015, Chief Morris met with Mayor Archer and delivered his formal recommendation that the Town award AlleyCat the towing contract.

Chief Morris based his recommendation on reports that AlleyCat had so far provided “high quality of service[;]” it had operated in the area for many years; and it was on the Tow List, thus it had been vetted by Prince George’s County Police Department. In his testimony at trial, Chief Morris stated there was no written policy requiring inclusion on the Tow List to qualify as the Town’s towing provider. Mayor Archer, in his testimony, contradicted Chief Morris and suggested there was a written policy: “we need a clearly written, stated town policy and follow it. . . . [The policy] would be in the police’s records and I believe they would also be in the town archives.” No written policy referring to the Tow List or general cooperation with the Prince George’s County Police Department was introduced into evidence.13 Chief Morris admitted in his testimony, that to his knowledge, there is no formal document signed by any Town official, other than the letter signed by Lieutenant Colonel Timmons in 2013 provisionally granting the tow contract to AlleyCat, that awarded the towing contract on a permanent basis. 13 We note that the Town has formally collaborated with Prince George’s County in providing services on behalf of its constituents, but there was not a similar record of official cooperation with Prince George’s County regarding the Tow List. See, e.g., Town Council Res., 2012-R-02 (Mar. 5, 2012) (“For the purpose of authorizing the Town [] to participate in joint negotiations with other Prince George’s County and other municipalities for the renewal of the Town’s cable franchise with Comcast of Maryland, Inc.; and matters generally related thereto.”); Town Council Res., 2011-R-18 (June 20, 2011) (approving a Town “Cooperation Agreement” with Prince George’s County regarding participation in the Community Development Block Grant and HOME Investment Partnership program). 14 Legal Proceedings A. Circuit Court Ashkar brought suit against the Town, Mayor Vernon Archer, Town administrators, and members of the RPPD, resulting in a five-day jury trial from May 14 to May 19, 2018.

Ashkar alleged incidents of discrimination based on his national origin, malicious prosecution, tortious interference with prospective advantage, civil conspiracy, antitrust violations, and retaliation. Following a motion for summary judgment, stipulation, and consent, the circuit court dismissed all of the defendants except the Town. Also, through summary judgment and consent of the parties, the circuit court dismissed all counts apart from discrimination and malicious prosecution. At the close of Ashkar’s case, the Town moved for judgment14 pursuant to Md. Rule 2-519.15 The circuit court granted the motion as to the count of malicious prosecution, but 14 The Town motioned for judgment on counts one (discrimination), two (malicious prosecution), and five (tortious interference with prospective advantage), however, the circuit court noted that count five was already dismissed by consent of the Town. 15 Maryland Rule 2-519 provides in pertinent part: A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. *** In a jury trial, if a motion for judgment is made at the close of all the evidence, the court may submit the case to the jury and reserve its decision on the motion until after the verdict or discharge of the jury.

For the purpose of appeal, the reservation constitutes a denial of the motion unless a judgment notwithstanding the verdict has been entered. 15 reserved judgment on the count of discrimination, and sent the count of discrimination against the Town to the jury to deliberate. The motion for judgment did not include the issues of excessive damages or remittitur later raised by the Town in a post-verdict motion for a new trial. The Town requested and the jury received the following instruction regarding the Town’s defense of the business judgment rule against the claim of discrimination: In determining whether the Town of Riverdale Park’s[,] through its employees or agents, stated reason for its action was a pretext for discrimination, you may not question the Town of Riverdale Park’s business judgment. Pretext is not established just because you disagree with the business judgment of the Town of Riverdale Park, unless you find that the Town of Riverdale Park[’s,] through its employees or agents, reason was a pretext for discrimination.

Even if the Town of Riverdale Park is mistaken and its business judgment is wrong, an employer is entitled to make its own policy and business judgments. The Town of Riverdale Park, through its employees and or agents, may make those business decisions as it sees fit, as long as it is not pretext for discrimination. The jury returned a verdict on the discrimination claim in favor of Ashkar and awarded compensatory damages in the amount of $244,212 and non-economic damages in the amount of $15,000. Following the verdict, the Town filed a motion for JNOV, or in the alternative, the Town requested a new trial pursuant to Rule 2-533.16 The Town also alternatively moved 16 Maryland Rule 2-533(c) provides in pertinent part: Any party may file a motion for new trial within ten days after entry of judgment.

A party whose verdict has been set aside on a motion for judgment notwithstanding the verdict or a party whose judgment has been amended on (continued . . .) 16 for the circuit court to grant a remittitur for one dollar in nominal damages, or to reduce judgment to $200,000 pursuant to the limitation on damages provided in the Local Government Tort Claims Act (“LGTCA”).17 In the hearing on the motion for JNOV, the circuit court dismissed the possibility for a new trial: [COUNSEL for the Town]: Now, we are going to talk about when we get to the motion for new trial . . . THE COURT: I can just tell you all now there will be no new trial. There is not going to be a new trial. [COUNSEL for the Town]: Okay. THE COURT: I will either -- I will decide the motion but we are not having a new trial. . . .

I am just saying. (Emphasis added). (. . . continued) a motion to amend the judgment may file a motion for new trial within ten days after entry of the judgment notwithstanding the verdict or the amended judgment. *** When a motion for new trial is joined with a motion for judgment notwithstanding the verdict and the motion for judgment notwithstanding the verdict is granted, the court at the same time shall decide whether to grant that party’s motion for new trial if the judgment is thereafter reversed on appeal. (Emphasis added). 17 The version of the LGTCA at issue in this appeal was codified at Md. Code (1974, 2006 Repl.

Vol.), §§ 5-301–304 of the Courts & Judicial Proceedings Article (“Cts. & Jud. Proc.”). The LGTCA has since been amended and raised the maximum liability limit to $400,000 per individual claim. Cts. & Jud.

Proc. § 5-303(a)(1) (1974, 2015 Repl. Vol.). 17 The circuit court appeared persuaded by the Town’s argument that the verdict should be capped at $200,000: “THE COURT: Well, I am persuaded that the cap applies. If nothing else, I think the cap does apply based on what I have read and what you have argued in writing. So, that was not going to be an issue for me.” The circuit court granted the motion for JNOV in favor of the Town.

The circuit court determined that Ashkar “provided no direct evidence of discrimination on behalf of The Town.” According to the circuit court, Ashkar’s primary argument in support of the discrimination claim arose from the alleged malicious prosecution by the Town.18 The malicious prosecution claim was not before the jury to decide, and the decision to use AlleyCat predated the actions that gave rise to the alleged malicious prosecution. The circuit court also found that because the Town’s agents were dismissed during the proceedings, there was no basis to impute discriminatory animus to the Town. The circuit court also found no evidence of language “which would demean the inherent dignity of any person[]” pursuant to Prince George’s Cty. Code § 2-229(a)(3)—the statutory basis for Ashkar’s claim of discrimination. 18 During trial, the jury heard testimony regarding a contentious interaction between Ashkar and the RPPD on April 25, 2015.

Ashkar responded to a private tow request following an accident within Town limits. When Ashkar arrived, he informed Sergeant Sommerville that he intended to tow the vehicle as requested. Sergeant Sommerville told Ashkar, “he doesn’t give a goddamn if he is going to tow that car or not, to get the fuck out of here.” Ashkar left without towing the vehicle. Sergeant Sommerville reported the interaction with Ashkar to Lieutenant Turner and Lieutenant Colonel Timmons.

The following day, Chief Morris recommended criminal charges to be filed against Ashkar: disturbing the peace and hindering passage; and obstructing and hindering an investigation. Both charges were entered nolle prosequi on August 11, 2015. 18 In the final paragraph of the memorandum and order, the circuit court explained, in the alternative, why Ashkar would not be entitled to relief. The circuit court found that Ashkar provided insufficient evidence for the jury to determine damages because the proffered expert testimony failed to accurately estimate Ashkar’s income derived from his ownership of Greg’s. The circuit court, despite its critique of the basis for the award of damages, did not include in its memorandum and order any statement regarding a new trial or remittitur.

B. The Court of Special Appeals The Court of Special Appeals reversed the grant of the motion for JNOV, but the Court affirmed the dismissal of the claim for malicious prosecution.19 Ashkar v. Town of Riverdale Park, No. 2714, Sept. Term, 2018, 2020 WL 4371289 at ⁶ (Md. Ct. Spec. App. Jul. 30, 2020). The Court remanded the case to the circuit court with direction to reinstate the jury verdict. Id. at ⁸.

The Court declined to address the Town’s alternative argument that a motion for a new trial or remittitur should be granted, because the Town waived these arguments by not raising them in the motion for judgment. Id. at ³ n.4. According to the Court, Ashkar presented his employment discrimination claim under Prince George’s Cty. Code § 2-229, which provides a private right of action under Md. Code Ann., State Government (“State Gov’t”) § 20-1202.

Id. at ⁴. The Court primarily considered Ashkar’s claim under Title VII of the Civil Rights Act, which, in 19 Ashkar did not renew the issue on cross-petition. 19 relevant part, does not permit employers to refuse to hire an individual because of the individual’s national origin. Id. (citing 42 U.S.C. § 2000e-2(a)(1)).20 According to the Court, Ashkar had the burden of persuading the jury that he had been the victim of discrimination.

Id. While Ashkar could have presented his case either through direct or circumstantial evidence, the Court confined its analysis to whether Ashkar satisfied his burden of proof through circumstantial evidence. Id. at ⁵–6. Ashkar needed to satisfy a four-part test to establish a prima facie case of employment discrimination: “(1) he/she was a member of a protected class, (2) he/she applied and was qualified for the position for which the employer was seeking applicants, (3) despite his/her qualification, he/she was rejected and (4) the position remained open and the employer continued to seek applicants having the plaintiff’s qualifications.” Id. at ⁴ (quoting Muse-Ariyoh v. Bd. of Educ. of Prince George’s Cty., 235 Md. App. 221, 243 , 175 A.3d 886, 899 (2017)).

Even though Ashkar “struggled” with adducing admissible evidence of discrimination from municipal leaders, the Court of Special Appeals concluded that Ashkar established a prima facie case of discrimination. Id. at ⁵. Ashkar 20 42 U.S.C. § 2000e-2(a) provides in pertinent part: It shall be an unlawful employment practice for an employer-- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.] (Emphasis added.) 20 demonstrated that, as a Palestinian-American, he was a member of a protected class. He demonstrated his objective qualifications and experience to continue as the Town’s towing service provider because he had a tow lot in town; he was the owner of the business that provided exclusive towing services for thirty years; and he provided towing services for other towns and organizations.

Id. at ⁶. He showed that the Town denied renewing Greg’s contract, despite being aware of Ashkar’s qualifications and credentials. Id. After Ashkar established a prima facie case of discrimination, the burden shifted to the Town to offer a non-discriminatory reason for the contested employment decision.

Id. at ⁵. The Court acknowledged the non-discriminatory reason provided by the Town. Id. According to the Town, Greg’s membership on the Tow List had lapsed and the Town used its business judgment to select another towing provider from the Tow List.

Id. The main issue for the Court concerned whether Ashkar, despite the non-discriminatory reasons advanced by the Town, demonstrated that the Tow List was a pretext and that the employment discrimination was a product of unlawful discrimination. Id. at ⁶. The Court reasoned that Ashkar met his burden of persuasion based on evidence of Lieutenant Colonel Timmons using a racial slur while concurrently being involved, if not “a significant influencer[,]” in denying Greg’s bid for the towing contract.

Id. at ⁵. The Court was also persuaded by Ashkar’s argument that the Town’s business justification was pretextual because there was no written policy relating to the Tow List that could have impacted the Town’s decision. Id. at ⁶. Viewing the facts in a light most favorable to Ashkar, the Court of Special Appeals concluded that a jury could come to the reasonable conclusion that the Tow List and 21 selection of AlleyCat was a pretext for denying Ashkar the contract based on race.

Id. at ⁷. The dissent would have affirmed the grant of the motion for JNOV by the circuit court, arguing that Ashkar failed to offer competent evidence that rose above speculation, hypothesis, and conjecture. Id. at ⁸ (Shaw Geter, J., dissenting) (citing Cooper v. Rodriguez, 443 Md. 680, 706 , 118 A.3d 829, 844 (2015)) (quotation omitted). The Town timely appealed to this Court.

DISCUSSION Standard of Review A party may only file a motion for JNOV “if that party made a motion for judgment at the close of all evidence and only on the grounds advanced in support of the earlier motion.” Md. Rule 2-532(a). We review the grant of a motion for JNOV “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, 443 Md. at 706 , 118 A.3d at 844 (citations 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 on the” discrimination claim, the grant of the motion for JNOV must be reversed. Hoffman v. Stamper, 385 Md. 1, 16 , 867 A.2d 276, 285 (2005). We have described this slight amount of evidence as whether “the nonmoving party offers competent evidence that rises above speculation, hypothesis, and conjecture, the judgment notwithstanding the verdict should be denied.” Cooper, 443 Md. at 706 , 118 A.3d at 844 (citations omitted). 22 Maryland Rule 2-532(f)(1) prescribes the scope of subsequent proceedings if an appellate court reverses the grant of a motion for JNOV: When Judgment Notwithstanding the Verdict Granted.

If a motion for judgment notwithstanding the verdict is granted and the appellate court reverses, it may (A) enter judgment on the original verdict, (B) remand the case for a new trial in accordance with a conditional order of the [circuit] court, or (C) itself order a new trial. If the [circuit] court has conditionally denied a motion for new trial, the appellee may assert error in that denial and, if the judgment notwithstanding the verdict is reversed, subsequent proceedings shall be in accordance with the order of the appellate court. The Contentions of the Parties The Town argues that the motion for JNOV should be affirmed because Ashkar failed to establish a prima facie case of employment discrimination and, alternatively, Greg’s lapsed membership on the Tow List was not a pretextual reason for denying employment. The Town urges us to adopt a more stringent standard for a prima facie