AN EMPLOYEE MUST PRESENT SUFFICIENT EVIDENCE OF DISCRIMINATION TO WITHSTAND A MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AGAINST AN ADVERSE EMPLOYMENT DECISION.

The Court of Appeals of Maryland held that to overcome a motion for judgment notwithstanding the verdict (“JNOV”) in an employment discrimination case, a plaintiff must present sufficient evidence upon which a jury could find, by the preponderance of the evidence, that the employer’s decision was rooted in intentional discrimination.  Town of Riverdale Park v. Ashkar, 474 Md. 581, 615, 255 A.3d 140, 159-160 (2021).  The court thus held that Mamoun Ashkar (“Ashkar”) presented sufficient evidence for a jury to reasonably conclude that the Town of Riverdale Park, Maryland (“the Town”) discriminated against Ashkar based on Ashkar’s national origin in its employment decision.  Id. at 613, 255 A.3d at 158.  In addition, the court held that a remand to reinstate a verdict, when additional rulings on questions of law remain, does not require a new trial.  Id. at 625, 255 A.3d at 165. 

For thirty years, Greg’s Towing (“Greg’s”) possessed an exclusive towing contract with the Riverdale Park Police Department (“RPPD”) and remained the only towing company with a storage lot within municipal limits.  Ashkar purchased Greg’s in March 2014, however, Greg’s previous owner allowed Greg’s membership on the police department’s “Tow List” to lapse.  Ashkar visited RPPD to discuss the continuation of Greg’s as the Town’s exclusive towing provider, yet RPPD rejected his request.  On a subsequent visit, Ashkar overheard RPPD officers making disparaging comments regarding his national origin.  Ashkar reported the racial slurs to an officer with the Maryland Fraternal Order of Police (“FOP”).  A RPPD officer later told the FOP officer that Ashkar was a “foreigner” who was unable to pass a background check.  Ashkar submitted a proposal for a towing contract in September 2014.  However, the Town awarded the contract to AlleyCat Towing and Recovery (“AlleyCat”) based on the Chief of RPPD’s recommendation. 

Alleging claims of discrimination based on national origin, Ashkar sued the Town and members of the RPPD in the Circuit Court for Prince George’s County.  Following a jury trial and at the close of evidence, the Town moved for judgment on the discrimination count.  The jury found in Ashkar’s favor on the discrimination claim.  The court granted the Town’s motion for JNOV after finding Ashkar failed to provide any “direct evidence of discrimination” that could be “imputed to the Town.”  On appeal, the Court of Special Appeals of Maryland reversed the grant of the motion for JNOV.  The majority held Ashkar met his burden of proof because a jury could reasonably conclude that the Town offered a “pretextual reason” for refusing Ashkar’s towing contract based on discriminatory biases.  The Town appealed, and the Court of Appeals of Maryland granted certiorari. 

For a plaintiff to establish employment discrimination through circumstantial evidence, the plaintiff must adhere to a three-part burden-shifting test articulated by the United States Supreme Court.  Ashkar, 474 Md. at 615-16, 255 A.3d at 160 (first citing Molesworth v. Brandon, 341 Md. 621, 638, 672 A.2d 608, 616 (1996); and then citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).  The first step requires an employee to establish a prima facie case of discrimination.  Ashkar, 474 Md. at 616, 255 A.3d at 160 (citing Molesworth, 341 Md. at 638, 672 A.2d at 617).  A prima facie case of discrimination requires the plaintiff to show that: (1) he belonged to a protected class; (2) that he applied for an open position and was qualified; (3) that he was rejected; and (4) that after his rejection, the employer continued to seek applicants having qualifications comparable to those of the complainant. Ashkar, 474 Md. at 616, 255 A.3d at 160 (quoting McDonnell Douglas Corp., 411 U.S. at 802).

The Court of Appeals of Maryland found that Ashkar established a prima facie case of discrimination.  Ashkar, 474 Md. at 617, 255 A.3d at 161.  As a Palestinian-American, Ashkar’s national origin qualified him as a member of a protected class.  Id. at 618, 255 A.3d at 161.  Ashkar was qualified because of his towing experience and ownership of Greg’s.  Id.  Despite Ashkar’s qualifications, his application for the towing contract was rejected, and the Town continued to keep the contract open until February 2015 when it awarded the contract to AlleyCat.  Id. at 619, 255 A.3d at 162.  

After establishing a prima facie case of discrimination, the burden then shifts to the employer, who must demonstrate a “legitimate, nondiscriminatory reason” for the employment decision.  Ashkar, 474 Md. at 620, 255 A.3d at 162 (citing Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981)). The Town satisfied its burden by citing AlleyCat’s inclusion on the Tow List and Greg’s omission from the list during the 2014-2015 Tow List cycle as a sufficient and nondiscriminatory reason for Ashkar’s rejection.  Ashkar, 474 Md. at 620, 255 A.3d at 162-63.   

The third step of the framework shifts the burden back to the plaintiff who must prove by a preponderance of the evidence that the proffered business reason was not the true motive behind the adverse employment decision, but rather a pretext for discrimination.  Ashkar, 474 Md. at 616-17, 255 A.3d at 160 (quoting Molesworth, 341 Md. at 638-39, 672 A.2d at 617).  Ashkar met this burden because he presented sufficient evidence for a jury to infer that RPPD’s discrimination against his national origin was the decisive factor behind the Town’s employment decision.  Ashkar, 474 Md. at 623, 255 A.3d at 164.  Ashkar testified that a RPPD officer called him racial slurs on two separate occasions.  Id. at 621, 255 A.3d at 163.  In addition, a RPPD officer told a FOP officer to not use Ashkar’s company because Ashkar was a “foreigner” who was unable to pass a background check.  Id.  The court noted that these instances of discrimination were “reasonably imputed” on the Town because RPPD officers, as employees of the Town, influenced the Chief of RPPD’s recommendation in awarding the towing contract.  Id. at 622-23, 255 A.3d at 163-64. 

Ashkar also presented sufficient evidence for a jury to find that the Town’s use of the Tow List was not “worthy of credence.”  Ashkar, 474 Md. at 623, 255 A.3d at 164.  The Town did not provide evidence of a written policy listing the Tow List as a decisive factor in awarding the towing contract.  Id.  Moreover, the Town formalized its preference for giving business to local vendors several months before the towing contract was awarded.  Id. at 624, 255 A.3d at 165.  This resolution should have favored Greg’s since it was the only towing service within the Town’s limits.  Id.  The court therefore held a jury could reasonably conclude that the Town’s denial of Greg’s proposal based on the Tow List was either directly a result of discrimination or indirectly as a pretext for discrimination.  Id. at 624-25, 255 A.3d at 165.

Finally, the court explained when a motion for JNOV is granted, the circuit court must simultaneously decide whether to grant a motion for a new trial.  Ashkar, 474 Md. at 628, 255 A.3d at 167.  However, the court held that a verdict can be reinstated without a new trial if only outstanding issues of law remain to be decided by the circuit court on remand.  Ashkar, 474 Md. at 629, 255 A.3d at 167 (citing Bowden v. Caldor, Inc., 350 Md. 4, 47, 710 A.2d 267, 288 (1998)).   

Ashkar illustrates the necessary path for an employee to prove employment discrimination.  However, as most employment decisions are made behind closed doors, it is unlikely this burden-shifting framework is practical in the 21st century.  Potential employers can fall prey to unintentional or intentional bias when researching an applicant online.  An applicant’s national origin, sexual preferences, gender identity, religious beliefs, and more can be found by viewing social media accounts.  One can be relegated to discriminatory practices by one click.  Although this ruling protects potential employees from intentional discrimination in employment decisions, industries must do their due diligence to ensure intentional discrimination does not occur.  Companies can achieve this goal by prohibiting employers from looking at applicants’ social media accounts and requiring employers to provide legitimate reasons in rejecting applicants.  

Leah Rowell is a third-year student at the University of Baltimore School of Law and the Managing Editor of Law Forum. She graduated with honors from Bowie State University. While at UB, Leah has served as a Law Scholar for Civil Procedure, a TA for Introduction to Lawyering Skills, and as a judicial extern for the Honorable Douglas R. M. Nazarian on the Court of Special Appeals. She currently works at civil litigation firm in Baltimore City, and upon graduation Leah will serve as a Judicial Law Clerk for the Honorable Dennis  M. Robinson in the Circuit Court for Baltimore County.