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 case

of discrimination. The Town cites Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

258, 101 S. Ct. 1089, 1096 (1981), for the proposition that a prospective employee cannot

establish a prima facie case of discrimination if the prospective employee’s objective

qualifications are not equal to or better than an applicant from a non-protected class. By

applying this proposition to the instant case, the Town argues it is not required to hire

Ashkar, who failed to demonstrate objective qualifications equal to or better than AlleyCat.

The Town argues that the Tow List provided an objective and decisive selection criterion,

and at the time, AlleyCat was on the Tow List, which made it the superior choice compared

to Greg’s, whose membership had lapsed. The failure to present qualifications equal to or

23

better than AlleyCat negated Ashkar’s prima facie case of employment discrimination.

According to the Town, the motion for JNOV should have been granted on this basis alone.

Even if Ashkar demonstrated a prima facie case of discrimination, the Town asserts

that Ashkar failed to demonstrate that the use of the Tow List was a pretextual reason for

denying employment. In Lockheed Martin Corp. v. Balderrama, a terminated employee

sued for employment discrimination based on his national origin. 227 Md. App. 476, 134

A.3d 398 (2016). The Court of Special Appeals concluded that the plaintiff failed to

present evidence that the reason for his termination was pretextual when the employer

downsized due to undisputed economic conditions and selected the plaintiff for termination

due to poor performance. Id. at 514–15, 134 A.3d at 420.

The Town contends that, similar to the plaintiff’s failure in Balderrama to

demonstrate that economic conditions and poor job performance were pretextual reasons

for the adverse employment decision, Ashkar failed to show that the Tow List was a

pretextual reason for denying employment. The Town “always has used a company on the

Tow List[]” because it enabled the Town to save time and money by outsourcing the vetting

of contractors to a larger and better resourced governmental entity. Greg’s was not on the

Tow List for the 2014–15 cycle, whereas at the time of Prendable’s retirement, AlleyCat

was on the Tow List.

The Town further rejects any basis that the decision to reject Ashkar’s employment

was grounded in or affected by discriminatory animus. According to the Town, the only

competent evidence of discrimination came from Ashkar’s testimony that Lieutenant

Colonel Timmons used a racial slur against him, but Ashkar failed to adduce evidence

24

establishing that Lieutenant Colonel Timmons’ “improper attitude infected the decision by

Chief Morris and Mayor Archer to remain with Alley Cat in February of 2015.” According

to the Town, Lieutenant Colonel Timmons’ role “was merely to investigate solutions to an

immediate problem and to make a recommendation to Chief Morris about how to proceed.”

Even accepting allegations of Lieutenant Colonel Timmons’ racial animus against Ashkar

as true, the Town argues that there is no evidence to connect the animus to Chief Morris

and Mayor Archer without speculation, conjecture or hypothesis. Therefore, the circuit

court’s grant of the motion for JNOV must be affirmed.

Assuming arguendo, that we reverse the motion for JNOV, the Town argues that

the Court of Special Appeals erred in reinstating the jury’s damage award. The Town

requests that the circuit court, upon remand, enter a judgment for zero dollars, or for the

circuit court to rule on the Town’s post-trial motion for a new trial and motion for

remittitur. According to the Town, the Court of Special Appeals ignored the analysis and

ruling of the circuit court that Ashkar failed to prove damages in any non-speculative

manner. Reinstating the jury verdict, according to the Town, would conflict with the

judgment of the circuit court. The Town also contends that the circuit court did not make

a “gratuitous” ruling regarding damages, rather an implicit striking of Ashkar’s expert

testimony and “a ruling on relief in the alternative in the form of remittitur.”

If this Court does not uphold the circuit court’s striking of the damage award, then

the Town asserts that it retains the right to have its motion for remittitur resolved on the

merits. In the Town’s view, the circuit court was “forecasting that remittitur in the

alternative would have applied had [it] not granted the [motion for JNOV].” The remand

25

order from the Court of Special Appeals conflicts with the circuit court’s “ruling” on

damages and deprives the Town an opportunity to present its alternative argument on the

merits. The Town asserts that it could not have appealed any aspect of the issue of damages

because the circuit court granted its motion for JNOV.

At a minimum, the Town contends that the limitation on liability or “cap” provided

in the LGTCA applies to Ashkar’s discrimination claim, which should reduce the total

judgment to $200,000. According to the Town, it had no occasion to raise the LGTCA

argument unless and until the jury awarded damages in excess of the cap. The Town

contends that the circuit court agreed with its position during the hearing on the motion for

JNOV when the Town first argued that the LGTCA cap applied. If this Court gives

credence to Ashkar’s argument that the circuit court stated there will be no new trial,

according to the Town, it must also give credence to the circuit court’s statement that the

LGTCA applies.

Finally, the Town argues that the jury’s award was deficient as a matter of law

because it arose from Ashkar’s claim of discrimination based on Prince George’s Cty. Code

§ 2-229, which does not provide a cognizable basis for relief.

In response, Ashkar asks this Court to affirm the Court of Special Appeals and hold

that there was sufficient evidence for a jury to find that the Town intentionally

discriminated in its employment decision. Ashkar asserts that the Town’s request for a

more stringent prima facie case for employer discrimination should be rejected because it

was waived and unpreserved. According to Ashkar, this Court has repeatedly held that the

burden-shifting framework, under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

26

S. Ct. 1817 (1973), applies to employment discrimination cases. The Town requested and

received jury instructions that described this burden-shifting framework, including an

explanation of the business judgment rule. The Town never objected to the instruction and

did not raise the issue on cross-appeal.

On the merits, Ashkar argues that the Court of Special Appeals correctly determined

that the evidence of discrimination rose above speculation, hypothesis, and conjecture, and

therefore the jury verdict should be reinstated. Ashkar presented sufficient evidence of

discriminatory animus. Ashkar overheard Lieutenant Colonel Timmons use a racial slur

against him. Lieutenant Turner told Ashkar that he was never going to get the contract.

When Sergeant Sease contacted Sergeant Sommerville at the RPPD, he was told by

Sergeant Sommerville that Ashkar was a foreigner and cannot pass a background check.

According to Ashkar, this discrimination by the RPPD can be imputed to the Town.

Mayor Archer testified that he directed Ashkar’s inquiry about the towing contract “to the

police department” because they were the people who make that decision, not the mayor.

Chief Morris directed Lieutenant Colonel Timmons to “handle” the towing situation. Even

if Lieutenant Colonel Timmons did not have final decision-making authority for the towing

contract, it was reasonable for the jury to infer that Lieutenant Colonel Timmons influenced

the decision.

According to Ashkar, the Town’s nondiscriminatory business reason for using the

Tow List was pretextual. Ashkar cites Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 147–48, 120 S. Ct. 2097, 2108 (2000), for the proposition that pretext may be shown

by providing evidence that the employer’s explanation is false, unworthy of credence, and

27

discrimination was the true reason for the adverse employment action. Ashkar notes that

while the Town has always used a company on the Tow List, there has never been a written

or formal policy until the present litigation. The only reason why the Town had always

used a company on the Tow List is because it exclusively used Greg’s for over thirty years.

Ashkar also argues that the Court of Special Appeals did not err in reinstating the

jury verdict without considering the Town’s alternative motion for a new trial or remittitur

(which also requires a new trial). According to Ashkar, the circuit court could not have

implicitly authorized or alternatively granted a new trial when it unequivocally stated there

would not be a new trial during the hearing. Even if the circuit court impliedly or

alternatively granted the motion, the Court of Special Appeals correctly relied on Md. Rule

2-532 when it concluded these arguments were not properly preserved for appellate review.

Ashkar argues that the liability cap provided in the LGTCA is not applicable to the

award of damages and consideration of the issue is procedurally barred because the Town

did not properly present the argument before this Court or in a cross-petition. Finally,

Ashkar contends that the Town waived its argument regarding Prince George’s Cty. Code

§ 229 as an improper statutory basis to bring an employment discrimination claim, when

the Town failed to object to the jury instructions predicated on the statute.

28

Analysis of Motion for JNOV

A. The Court of Special Appeals correctly reversed the grant of the motion for

JNOV because Ashkar presented sufficient evidence for a jury to conclude that

the Town discriminated on the basis of national origin in its employment

decision.

State Gov’t § 20-1202(b) provides “a person that is subjected to a discriminatory

act prohibited by the county code [of Prince George’s County] may bring and maintain a

civil action against the person that committed the alleged discriminatory act for damages,

injunctive relief, or other civil relief.” See also Haas v. Lockheed Martin Corp., 396 Md.

469, 495, 914 A.2d 735, 750–51 (2007) (noting that remedial statutes, like State Gov’t §

20-1202, “should be construed liberally in favor of claimants seeking its protection”).

Ashkar based the employment discrimination claim, authorized by State Gov’t § 20-

1202, under Prince George’s Cty. Code § 2-229(a) that provides:

(a) The Human Relations Commission shall have the authority to investigate,

and hold formal hearing, on any sworn complaint against any law

enforcement officer operating within the County, except a complaint

against a member of the Prince George’s County Police Department,

which alleges any of the following categories of complaints that are

defined and prohibited by law or regulation:

(1) Police harassment;

(2) The excessive use of force in the performance of his duties;

(3) The use of language which would demean the inherent dignity of any

person.

(Emphasis added.)

As a threshold matter, the Town’s argument that Ashkar used an improper right of

action to bring the discrimination claim is not before this Court, because it was not

29

advanced in the motion for judgment. Sage Title Grp., LLC v. Roman, 455 Md. 188, 216,

166 A.3d 1026, 1042 (2017). The argument was also waived by the Town when it did not

object to the instructions provided to the jury before deliberations. Md. Rule 2-520(e) (“No

party may assign as error the giving or the failure to give an instruction unless the party

objects on the record promptly after the court instructs the jury, stating distinctly the matter

to which the party objects and the grounds of the objection.”); Barone v. Winebrenner, 189

Md. 142, 145–46, 55 A.2d 505, 506 (1947) (“The purpose, of course, in requiring

exceptions to be made to the instructions of the trial judge before the jury retires is to give

that judge an opportunity to correct or add to his [or her] instructions matters either first

erroneously stated or omitted. The court’s charge to the jury should properly state the law

of the case. . . . In the instant case, [since] no objection was made to the instructions before

the jury retired to consider its verdict, and, [] no specific grounds of objection were stated

before the jury retired . . . we are prevented on appeal from considering errors in the

instructions given in the case. . . . [I]t might be well to say that in our opinion the

instructions fairly covered the law of the case.”) (emphasis added).

The Town acknowledged, in its motion for judgment, that Maryland courts have

used the analogous federal analytical framework under Title VII of the Civil Rights Act of

1964 to evaluate claims of discrimination. 42 U.S.C. § 2000e-2(a)(1).21 The circuit court

used and explained the burden-shifting framework in the jury instruction.22 This Court has

21

See supra note 20.

22

The jury instruction provided:

(continued . . .)

30

recognized that Title VII is the federal analog to State Gov’t § 20-1202 and has expressly

been guided by cases from the United States Supreme Court in resolving discrimination

claims arising under Maryland law. Haas, 396 Md. at 481 n.8, 914 A.2d at 743 n.8. We

again do so here.

Ashkar presented sufficient evidence of employment discrimination to withstand a

motion for JNOV.

To overcome a motion for JNOV on appeal, the plaintiff must demonstrate that a

reasonable jury could find, by a preponderance of evidence, that the employer intentionally

discriminated in its employment decision. The defendant must establish that no reasonable

jury could find the standard was met. A plaintiff may establish employment discrimination

through direct evidence or circumstantial evidence. Taylor v. Giant of Md., 423 Md. 628,

652, 33 A.3d 445, 459 (2011) (citing federal cases as guidance in allowing plaintiffs to

prove discrimination with circumstantial evidence); Molesworth v. Brandon, 341 Md. 621,

638, 672 A.2d 608, 617 (1996) (noting that without the benefit of direct evidence, the

employee must first make out a prima facie case of discrimination).

(. . . continued)

In order to recover, [] Ashkar must show the Town [], through its employees

and or agents, intentionally discriminated against him. [] Ashkar may

produce direct evidence of intentional discrimination or intentional

discrimination may be inferred from the existence of circumstantial

evidence. When the Town [], through its employees and or agents, show a

legitimate nondiscriminatory reason for its action, [] Ashkar, in turn, may

rebut that showing by proving that the stated reason was not the true reason

but was only a pretext or excuse for [the] Town [] through its employees and

or agents discriminating against [] Ashkar because of his national origin. If

you find that the Town [], through its employees and or agents, stated reason

for its action was not the true reason, you may, but are not required to, infer

that national origin was motivating factor for the decision.

31

If a plaintiff, as Ashkar does here, seeks to establish employment discrimination

through circumstantial evidence, the order and allocation of proof follows a burden-shifting

framework, originally outlined by the United States Supreme Court in McDonnell Douglas.

Molesworth, 341 Md. at 638, 672 A.2d at 616. “[T]he employee must first make out a

[prima facie] case of discrimination.” Id., 672 A.2d at 617. To establish a prima facie case

of discrimination—step one in the three-step McDonnell Douglas burden-shifting

framework—the plaintiff must show:

(i) that he [or she] belongs to a racial minority; (ii) that he [or she] applied

and was qualified for a job for which the employer was seeking applicants;

(iii) that, despite his [or her] qualifications, he [or she] was rejected; and (iv)

that, after his [or her] rejection, the position remained open and the employer

continued to seek applicants from persons of complainant’s qualifications.

McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824 (footnoted omitted). What

circumstantial evidence is required depends on the circumstances of the case. Molesworth,

341 Md. at 638, 672 A.2d at 617. The burden of production for a prima facie case of

discrimination is minimal. Burdine, 450 U.S. at 253–54, 101 S. Ct. at 1093.

At step two, after the plaintiff establishes a prima facie case, the burden of

production shifts to the employer to articulate some legitimate, nondiscriminatory reason

for the adverse employment decision taken against the plaintiff. Id., 101 S. Ct. at 1093;

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 2748 (1993) (“By

producing evidence (whether ultimately persuasive or not) of nondiscriminatory reasons,

[the defendants] sustained their burden of production[]”); see also Reeves, 530 U.S. at 148,

120 S. Ct. at 2109 (“an employer would be entitled to judgment as a matter of law . . . if

the plaintiff created only a weak issue of fact as to whether the employer’s reason was

32

untrue and there was abundant and uncontroverted independent evidence that no

discrimination had occurred”).

“If the defendant carries this burden of production, the presumption raised by the

[prima facie] case is rebutted[.]” Burdine, 450 U.S. at 255, 1010 S. Ct. at 1094–95. At

step three, the burden of persuasion ultimately shifts back to the plaintiff, who must have

an opportunity “to prove by a preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but were a pretext for discrimination.”

Molesworth, 341 Md. at 638–39, 672 A.2d at 617 (quoting Burdine, 450 U.S. at 253, 101

S. Ct. at 1093). In Burdine, the United States Supreme Court explained that the plaintiff

may satisfy the burden of persuasion either through a direct showing that the discriminatory

reason more likely motivated the adverse employment decision than not or through an

indirect showing that the employer’s proffered explanation is unworthy of credence. Id. at

256, 101 S. Ct. at 1095.

Applying the McDonnell Douglas burden-shifting framework to the case at bar, and

as we shall explain below, we conclude that Ashkar presented sufficient evidence of

discrimination to withstand a motion for JNOV. At step one, Ashkar established a prima

facie case of discrimination. The Town contends that because Ashkar, in its estimation,

was not as qualified as AlleyCat, he cannot establish a prima facie case for discrimination.

We are not persuaded by the Town’s argument, nor shall we read a more stringent burden

of production into the first step of the McDonnell Douglas burden-shifting framework.23

23

The Court of Special Appeals recognized the applicability of the McDonnell

(continued . . .)

33

All that Ashkar must show to establish a prima facie case of discrimination is that as a

member of a protected class, he was qualified, but despite those qualifications, his

application for the tow contract was rejected, and given to somebody else.

In this case, Ashkar, as a first-generation Palestinian-American, is a member of a

protected class. Wheeler v. State, 281 Md. 593, 601, 380 A.2d 1052, 1057 (1977)

(acknowledging national origin as a protected class). Ashkar demonstrated his

qualifications for the towing contract. He personally had considerable towing experience,

as a co-owner of Five Star Towing, before purchasing Greg’s, which had operated as the

exclusive towing company in the Town for over three decades. His ownership of Greg’s

continued to provide the Town with a towing provider and secured vehicle storage facility

within municipal boundaries. At all times, before and after Ashkar’s purchase of the

business, Greg’s maintained the required licensure and permits pursuant to municipal,

county, and state law for over thirty years.

Discussed in more depth below, Greg’s lapsed membership on the Tow List does

not negate Ashkar’s qualifications for employment. There was no evidence that the Tow

(. . . continued)

Douglas burden-shifting framework in a discrimination case thirty-seven years ago in State

Comm’n on Human Relations v. Wash. Cty. Cmty. Action Council, Inc., 59 Md. App. 451,

455–56, 476 A.2d 222, 224 (1984) (“The basic allocation of burdens and order of

presentation of proof in cases of racial discrimination has been delineated by the Supreme

Court of the United States in McDonnell Douglas[.]”). This Court also first cited the

McDonnell Douglas burden-shifting framework in Stanley v. State, 313 Md. 50, 542 A.2d

1267 (1988) and examined the framework in detail in Molesworth. 341 Md. at 638, 672

A.2d at 617. In Molesworth, this Court cited Burdine but never implied that Burdine

affected the McDonnell Douglas burden-shifting framework in any way. Id. at 638–39,

672 A.2d at 617.

34

List, as the Town contends, was a “necessary certification” for employment. The Tow List

requirement was not provided in the Town Charter, in the Town Code, in any Town

ordinance, or in any Town resolution. The record does not indicate that the Tow List was

an official employment policy of the Town or the RPPD. We see no evidence that the Tow

List had ever been used as a requirement for employment, even as an unofficial guideline,

before the present litigation. Neither Ashkar, nor AlleyCat mentioned the Tow List in their

bids for the Town’s towing contract. Finally, we note that not even Prince George’s County

required membership on the Tow List for its towing service providers until after the present

litigation.

At most, the Tow List could have provided a nondiscriminatory and legitimate

business reason for the Town to award the towing contract to AlleyCat over Ashkar. Even

if this is true, in these circumstances, it must be separately analyzed in the second and third

steps of the McDonnell Douglas framework. Ashkar was not required, as the Town

contends, to show that Greg’s was more qualified than AlleyCat to establish a prima facie

case of discrimination. “McDonnell Douglas teaches that it is the plaintiff’s task to

demonstrate that similarly situated employees were not treated equally.” Burdine, 450 U.S.

at 258, 101 S. Ct. at 1096 (emphasis added).

Assuming arguendo, that Ashkar was required to demonstrate superior credentials,

apart from AlleyCat’s status as the interim provider of towing services, Greg’s appeared

more qualified than AlleyCat. Chief Morris testified, when providing his recommendation

to Mayor Archer, that there were three main criteria for selecting AlleyCat: (1) the Town

had been receiving “high quality of service” from AlleyCat during the interim, (2) AlleyCat

35

had been in business for many years, and most importantly, (3) it was on the Tow List, and

thereby had been vetted by Prince George’s County. Greg’s application surpassed

AlleyCat’s in all three facets.

Greg’s was established in 1974 in Riverdale and served the community for over

thirty years. AlleyCat was founded in 2000 and is located in Hyattsville, Maryland. Greg’s

location in the center of town enabled more convenient towing and car storage services for

the citizens of the Town and the RPPD, not to mention it would have furthered the Town’s

policy for promoting local businesses. Greg’s had cultivated business relationships and a

good reputation with multiple insurance companies, Prince George’s County, Maryland

State Police, the United States Postal Inspection Service, the United States Office of the

Inspector General, and the City of College Park, among others. Greg’s had also been on

the Tow List for years and thus, by the Town’s purported business rationale, had been

vetted by the Prince George’s County Police Department multiple times. When Prendable

applied mid-cycle to rejoin the Tow List, Lieutenant Macherko testified that Greg’s would

have qualified but for the missed application deadline.

Despite awareness of Ashkar’s qualifications for employment, the Town rejected

his application for employment, and continued to keep the contract open until it awarded

its business to AlleyCat in February 2015. These facts, examined in the light most

favorable to Ashkar, satisfy a prima facie case of discrimination “because we presume

these acts, if otherwise unexplained, are more likely than not based on consideration of

impermissible factors.” Burdine, 450 U.S. at 254, 101 S. Ct. at 1094 (quoting Furnco

Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 2949 (1978)).

36

Since Ashkar established a prima facie case of discrimination, the burden shifts to

the Town “to rebut the presumption of discrimination by producing evidence that the

plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory

reason.” Id., 101 S. Ct. at 1094. “To accomplish this, the defendant must clearly set forth,

through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.”

Id. at 255, 101 S. Ct. at 1094 (footnote omitted). This requirement is a low bar because the

Town “need not persuade the court that it was actually motivated by the proffered

reasons[]” because the burden of showing pretext ultimately falls on Ashkar. Id. at 254,

101 S. Ct. at 1094 (emphasis added).

The Town satisfied its burden of production by pointing to the Tow List as a

legitimate business reason for selecting AlleyCat over Ashkar. According to the Town,

the Tow List provided a useful and expedient sorting and evaluation tool when deciding

between prospective bids that also conserved the Town’s limited personnel resources.

According to the Town, AlleyCat’s inclusion on the Tow List and Greg’s omission during

the 2014–15 Tow List cycle provided the decisive factor in awarding the towing contract

to AlleyCat. While the record does not support the Town’s contention that Greg’s omission

from the Tow List rendered Ashkar unqualified for employment, the Tow List does provide

a legally sufficient and nondiscriminatory reason for why AlleyCat may have been

preferred.

The alleged legitimate business reason produced by the Town means that Ashkar,

at step three, retained the ultimate burden of persuading the jury that he had been the victim

of employment discrimination. Id. at 256, 101 S. Ct. 1095. Ashkar may prevail by showing

37

directly that a discriminatory reason, more likely than not, motivated the adverse

employment decision or indirectly by showing that the Town’s Tow List explanation is

unworthy of credence. See McDonnell Douglas, 411 U.S. at 804–05, 93 S. Ct. at 1825–

26. Ashkar presented sufficient evidence so that reasonable jurors, applying the

preponderance of evidence standard of proof in a light most favorable to Ashkar, could

find either that a discriminatory reason motivated the Town’s selection of AlleyCat or that

the Tow List explanation is unworthy of credence. Bradford v. Jai Med. Sys. Managed

Care Orgs., Inc., 439 Md. 2, 15, 93 A.3d 697, 705 (2014) (when reviewing a motion for

JNOV, “[w]hether a particular theory of liability may apply and the appropriate standard

of proof under that theory are necessarily legal questions on which the reviewing court is

not required to accord any deference to the [circuit] court.”).

Ashkar presented sufficient evidence that discrimination against his national origin

motivated the Town’s employment decision. Ashkar testified that Lieutenant Colonel

Timmons called Ashkar a “camel jockey” on two separate occasions. The slur used by

Lieutenant Colonel Timmons may have been sufficient, by itself, to infer discrimination,24

but the record provides at least two more indications of discriminatory animus by the

RPPD, directed against Ashkar based on his national origin. When Sergeant Sease of the

24

In Amirmorki v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1134 (4th Cir. 1995), cited

by the Maryland Bar Association Employment Law Deskbook as an example of

impermissible incidents of discrimination under Title VII, the Fourth Circuit found that

racial slurs like “camel jockey,” among others, would be sufficient to reverse summary

judgment on a Title VII claim of national origin harassment and constructive discharge.

The Maryland State Bar Association, Inc., Maryland Employment Law Deskbook, chpt.

28 (2016).

38

local FOP called his contact within the RPPD to discuss Greg’s, he was told, “no, no, no,

don’t use this company, Mike [is] not his real name, 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.”

A less overt indication of discrimination, but no less relevant for the consideration of the

jury, came from Lieutenant Turner, who following Lieutenant Colonel Timmons’

statement, “this fucking camel jockey doesn’t get the point[,]” brought Ashkar into an

interview room at the police station, loomed over him, and admonished Ashkar that he

would “never” get the contract and to “stop bothering us and don’t come back here.”

These instances of discrimination from RPPD officers are reasonably imputed to the

Town. While the Town argues that the mayor has ultimate decision making authority, not

the RPPD, Mayor Archer testified that he relied on the recommendation of Chief Morris

for the selection of AlleyCat, and that he directed Ashkar “to the police department”

because they were the people who make that decision, not the mayor. Chief Morris then

delegated his responsibility for the towing contract decision to Lieutenant Colonel

Timmons and Lieutenant Turner, and Chief Morris followed their recommendation:

[Chief Morris]: Lieutenant Colonel Timmons and Lieutenant Turner met

with AlleyCat after confirming that Mr. Prendable was not going to be

towing. They reported back to me the results of that meeting . . . and I

concurred with the recommendation to move forward and directed

Lieutenant [Colonel] Timmons to do so.

(Emphasis added). This delegation of decision-making authority from Chief Morris to

Lieutenant Colonel and Assistant Chief Timmons was authorized by Town of Riverdale

Park, Md., Code § 53-10(a). See also Town of Riverdale Park, Md., Code § 64-15

(providing the RPPD with the authority to remove and impound unattended vehicles).

39

Testimony from the Town’s own witnesses indicate that the RPPD, and specifically

Lieutenant Colonel Timmons, was the most important voice in denying Ashkar’s bid for

employment.

In fact, the only evidence of a written towing agreement came from Lieutenant

Colonel Timmons himself, who wrote a letter, on behalf of the RPPD, that awarded the

towing contract to AlleyCat on a provisional basis. This letter stated that “we,” as the

RPPD, “desire AlleyCat [] begin towing for us.” There was enough evidence for the jury

to reasonably infer that Lieutenant Colonel Timmons’ racial animus towards Ashkar

influenced, if not determined, Chief Morris’ recommendation for the towing contract, and

by extension, the Town’s adverse employment decision against Ashkar. This evidence was

sufficient to raise the claim of employment discrimination above speculation, hypothesis,

and conjecture.

Alternatively, Ashkar presented sufficient evidence for the jury to find that the

Town’s use of the Tow List as a nondiscriminatory reason for the adverse employment

decision was not worthy of credence. The record is bereft of any written policy, ordinance,

or resolution that listed the Tow List as a factor, let alone a decisive factor, in selecting a

towing company. Chief Morris testified that he was not aware of a written Tow List policy.

Mayor Archer contradicted Chief Morris and testified that there was a written policy, but

the Town did not produce any evidence of a written policy to verify Mayor Archer’s

contention. The contradictory statements from the two principal decision makers regarding

the towing contract undermines the credence of the Town’s proffered non-discriminatory

rationale for its adverse employment decision.

40

The contradictory testimony also presents a quintessential question of fact best left

to the jury to resolve. Estate of Blair v. Austin, 469 Md. 1, 18, 228 A.3d 1094, 1103 (2020)

(“We have long held that ‘[n]either the [circuit] court nor this Court is permitted to

substitute its evaluation of [the] evidence for that of the jury. . . . To do so would be an

invasion of the jury’s province[]’”); Devincentz v. State, 460 Md. 518, 561, 191 A.3d 373,

398 (2018) (“Assessing a witness’s credibility and deciding the weight to be assigned to

that witness’s testimony are tasks solely delegated to the jury.”). If the Tow List provided

the decisive touchstone for evaluating bids, then the jury could have reasonably questioned

why Chief Morris, Lieutenant Colonel Timmons, Lieutenant Turner, Mayor Archer, or any

of the Town administrators never mentioned the Tow List as a necessary qualification

during the eight month period in which Ashkar earnestly pursued the towing contract.

The resolution that formalized the Town’s preference in giving business to local

vendors, passed eight months before the towing contract decision was made, further

renders the Tow List rationale as not credible. Greg’s, as the only local towing service

within the Town’s municipal limits, should have been favored according to the resolution.

With this resolution in mind, and as a practical matter, the jury could have also reasonably

questioned why the Town would have outsourced the vetting process to the Prince

George’s County Police Department when the Town took the time to solicit and review

extensive applications from both AlleyCat and Ashkar consisting of personal, towing and

tax records, and even client testimonials.

Finally, our review of the record, including an examination of the Town’s Code,

ordinances, and resolutions, produced no official criteria, let alone written policy, for

41

selecting a towing vendor. We also found no evidence of the Town incorporating Prince

George’s County towing ordinances or policies by reference. The absence of official Town

ordinances, resolutions, or written policies contrasts with the Town’s extensive paper-trail

of resolutions and ordinances that chronicle and direct the Town’s business decisions with

local vendors in precise and granular detail.25

A jury could have reasonably decided that the Tow List was a post-hoc rationale for

selecting AlleyCat and was not worthy of credence. International Bhd. of Teamsters v.

United States, 431 U.S. 324, 341–42, 97 S. Ct. 1843, 1858 (1977) (“The company’s later

changes in its hiring [] policies could be of little comfort to the victims of the earlier []

discrimination, and could not erase its previous illegal conduct or its obligation to afford

relief to those who suffered because of it.”). We hold that Ashkar provided sufficient

evidence for a jury to find that the Town’s rejection of Greg’s based on the Tow List was

either directly motivated by discrimination or indirectly used as a pretext.

B. The Court of Special Appeals correctly instructed on remand to reinstate the

verdict, which does not preclude the circuit court from making necessary

rulings in accordance with this opinion without the need for a new trial.

Maryland Rule 8-604(d)(1) generally governs circuit court proceedings following

remand:

If the Court concludes that the substantial merits of a case will not be

determined by affirming, reversing or modifying the judgment, or that justice

will be served by permitting further proceedings, the Court may remand the

case to a lower court. In the order remanding a case, the appellate court shall

state the purpose for the remand. The order of remand and the opinion upon

which the order is based are conclusive as to the points decided. Upon

remand, the lower court shall conduct any further proceedings necessary to

25

See supra note 5.

42

determine the action in accordance with the opinion and order of the appellate

court.

(Emphasis added.)

The specific scope of our remand when reversing a motion for JNOV is controlled

by Md. Rule 2-532(f)(1):

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.

(Emphasis added.)

The Court of Special Appeals reversed the motion for JNOV and remanded with the

direction to enter judgment on the original verdict pursuant to Md. Rule 2-532(f)(1)(A).

The Court of Special Appeals declined to address the Town’s alternative arguments

concerning insufficient evidence of damages, excessive damages, or limitation of damages

pursuant to the LGTCA because none of these arguments were originally raised in the

Town’s initial motion for judgment. The Court of Special Appeals noted that an argument

not raised in the initial motion for judgment is waived in the motion for JNOV. Ashkar,

2020 WL 4371289 at *3 n.4 (citing Md. Rule 2-532(a); Sage Title Grp., LLC, 455 Md. at

216, 166 A.3d at 1042 (holding that a party cannot raise an argument in a motion for JNOV

when it fails to raise the argument in the original motion for judgment)).

The Court of Special Appeals correctly acknowledged that an argument not raised

in the motion for judgment is waived in the motion for JNOV. Id. The Court of Special

43

Appeals also correctly characterized the circuit court’s brief discussion of excessive

damages as “gratuitous” in terms of the motion for JNOV, because it was not necessary to

the determination of whether there was sufficient evidence to present the claim of

discrimination to the jury. Id.; see also Plank v. Cherneski, 469 Md. 548, 594, 231 A.3d

436, 463 (2020) (defining a “judicial comment made while delivering a judicial opinion,

but one that is unnecessary to the decision in the case” as dicta). While the Town’s post-

judgment arguments may have been correctly precluded from consideration in the motion

for JNOV, we cannot say from the record, whether the circuit court made two rulings—

required by Maryland law—relating to the Town’s alternative motion for a new trial and

to the application of the LGTCA.

Maryland Rule 2-533(c) requires a circuit court to decide whether to alternatively

grant a motion for a new trial if the motion for JNOV is thereafter reversed on appeal:

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.)

In Baliles v. Bryant, the defendant, pursuant to the predecessor to Md. Rule 2-533,26

joined a motion for a new trial with its motion for JNOV. 207 Md. 332, 338, 114 A.2d

26

The predecessor to Md. Rule 2-533 provided:

A motion for a new trial may be joined with a motion for judgment under

this rule or a new trial may be prayed for in the alternative. Failure to move

for judgment under this rule does not affect a party’s right upon appeal to

(continued . . .)

44

601, 603 (1955). The motion for a new trial “raised two points in addition to the question

presented by the motion for [JNOV].” Id., 114 A.2d at 603. The circuit court granted the

motion for JNOV, but did not rule upon the motion for a new trial. Id., 114 A.2d at 603.

On appeal, this Court reversed the grant of the motion for JNOV and remanded “the case

for consideration by the [circuit court] of these two points raised by the motion for a new

trial.” Id., 114 A.2d at 604; see also Kremer v. Fleetway Cab Co., 197 Md. 557, 564, 79

A.2d 853, 856 (1951) (“As the trial judge in this case did not rule upon appellee’s motion

for a new trial, [following the grant of the motion JNOV,] we must remand the case for a

ruling by the trial judge on that motion[]”); c.f. Fennel v. G.A.C. Fin. Corp. of Balt. No. 3,

242 Md. 209, 229–30, 218 A.2d 492, 503 (1966) (“Since we have dealt with all of the

matters which might be argued in support of the motion we see no reason for ordering a

new trial nor do we see any reason why it should be sent back for a ruling[.]”) (emphasis

added).

The Town, similar to the defendant in Baliles, and as permitted under Md. Rule 2-

532(c), submitted a motion for JNOV simultaneously with a motion for a new trial. Despite

this concurrent submission, the record presents two contrasting intentions of the circuit

court as to whether to grant a new trial. During the hearing on the motion for JNOV, the

circuit court stated “I can just tell you all now there will be no new trial. There is not going

(. . . continued)

assign as error the denial of his motion for a directed verdict.

General Rules of Practice and Procedure, 6 Md. L. Rev. 91, 111 (1941) (quoting Rule 8(a)

of Part Three, Subdivision III of the General Rules of practice and procedure).

45

to be a new trial[.]”27 On the other hand, in its memorandum and order, the circuit court

appeared to forecast its intention, without stating expressly, that it would have ordered a

new trial but for the grant of the motion for JNOV.

Even though the circuit court granted the motion for JNOV, it was required pursuant

to Md. Rule 2-533(c) “at the same time shall decide” whether to grant a motion for a new

trial if the judgment was later reversed on appeal. Md. Rule 1-201(a) (“When a rule, by

the word ‘shall’ or otherwise, mandates or prohibits conduct, the consequences of

noncompliance are those prescribed by these rules or by statute.”); see Gen. Motors Corp.

v. Seay, 388 Md. 341, 356, 879 A.2d 1049, 1057 (2005) (“As we have said time and time

again, the Maryland rules are ‘precise rubrics,’ which are to be strictly followed.”) (citation

omitted); see also Banegura, 312 Md. at 625, 541 A.2d at 977 (“the first opportunity to

object [to an excessive verdict] is through the motion for a new trial. We hold that

Banegura had not waived his right to request a remittitur”).

The second outstanding legal issue for consideration on remand concerns the

application of the liability limitation or damages “cap” of the LGTCA. In Bowden v.

Caldor, Inc., this Court noted that “when the law imposes a limitation or cap upon damages,

Article 23 of the Declaration of Rights does not preclude a court from reducing the jury’s

award of damages to such limitation or cap.” 350 Md. 4, 46–47, 710 A.2d 267, 287–88

27

This Court does not review the refusal to grant a new trial unless the circuit court

abused its discretion. Conklin v. Schillinger, 255 Md. 50, 66, 257 A.2d 187, 195 (1969).

Similarly, the grant or refusal of a remittitur, which orders a new trial unless the plaintiff

accepts a lesser sum fixed by the court is also within the discretion of the circuit court.

Banegura v. Taylor, 312 Md. 609, 624, 541 A.2d 969, 976 (1988). We do not suggest that

the circuit court would have abused its discretion in denying the motion for a new trial.

46

(1998) (citing Murphy v. Edmonds, 325 Md. 342, 370–75, 601 A.2d 102, 116–18 (1992)).

The application of the liability limitation pursuant to the LGTCA presents a question of

law to be decided by the circuit court upon remand. “[I]t is proper to place the

responsibility for resolving such a conflict ‘with the [circuit] court, a tribunal which is in a

position vastly superior to that of an appellate court to perform this very important task.’”

Simpkins v. Ford Motor Credit Co., 389 Md. 426, 440, 886 A.2d 126, 134–35 (2005)

(quoting Kowell Ford, Inc. v. Doolan, 283 Md, 579, 584, 391 A.2d 840, 843 (1978)). The

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. Bowden, 350 Md. at 47, 710 A.2d at 288.

The LGTCA limits the liability of local government, including municipalities like

the Town. At the time of the Town’s discrimination against Ashkar, the statute limited

liability to $200,000 for a single claim. Cts. & Jud. Proc. § 5-303(a)(1) (1974, 2006 Repl.

Vol.). In this case, the jury awarded $244,212 in damages and $15,000 in non-economic

damages. The issue of whether the liability limitation pursuant to Cts. & Jud. Proc. § 5-

303(a)(1) (1974, 2006 Repl. Vol.) applies in this case is to be considered on remand.

CONCLUSION

For the reasons previously explained, we affirm the judgment of the Court of Special

Appeals.

47

JUDGMENT OF THE COURT OF

SPECIAL APPEALS IS AFFIRMED.

CASE REMANDED TO THE

CIRCUIT COURT FOR PRINCE

GEORGE’S COUNTY FOR

FURTHER PROCEEDINGS

CONSISTENT WITH THIS

OPINION. COSTS TO BE PAID BY

PETITIONER.

48