An attorney for Riverdale Park urged Maryland’s top court Monday to overturn a ruling that the Prince George’s County town illegally discriminated against a Palestinian-American towing company owner in awarding a towing contract.
Riverdale Park’s decision to bypass Mamoun Ashkar’s firm in favor one on the county’s list of recommended towing companies was a “legitimate business” decision by the town’s leaders and not based on “racial animus,” Kevin Karpinski told the Court of Appeals.
But Ashkar’s attorney pressed the high court to defer to the jury’s finding of national origin discrimination and not look past the “camel jockey” epithet hurled at Ashkar as he applied for the towing contract.
The Court of Appeals should not act as “a super jury, a super finder of fact” that supplants trial jurors, said Levi S. Zaslow, of Joseph, Greenwald & Laake PA in Greenbelt.
Riverdale Park was appealing the intermediate Court of Special Appeals’ reinstatement of a jury’s verdict that the town’s stated business reason for passing on Ashkar’s company, Greg’s Towing Inc., was a mere pretext for its true desire not to award the contract to a company owned by someone of Arab descent.
The Prince George’s County Circuit Court jury’s May 2018 decision – and $259,212 award – had been overturned by the trial judge, who said Riverdale Park gave a valid business-related reason for not awarding the contract to Greg’s Towing and that Ashkar had not shown national origin discrimination was the motivating factor for the town’s decision.
Defending the trial judge’s action, Karpinski told the high court that the town validly chose to award the contract to another firm – AlleyCat Towing & Recovery Inc. — based on recommendations and its presence on the county’s list of approved towing companies.
Being on the “tow list” was an “essential, critical” factor in the town’s decision, said Karpinski, of Karpinski, Cornbrooks & Karp PA in Baltimore.
That argument, however, drew skepticism from Judges Brynja M. Booth and Shirley M. Watts, who noted that being on the tow list was not among the prerequisites on the town’s written request for qualified applicants.
Karpinski responded that experienced towing companies know the importance of being on the list when Prince George’s County localities award contracts, regardless of the qualifications specifically mentioned on the applicant request.
But Zaslow countered the jury heard the town’s explanation, rejected it and concluded that “the tow list was not the real requirement” in Ashkar’s case.
According to trial testimony, Ashkar bought Greg’s Towing Inc. in January 2015. The company had handled Riverdale Park’s towing for more than 30 years prior to Ashkar’s purchase.
Soon after taking over the business, Ashkar said he overheard members of the Riverdale Park Police Department refer to him as a “camel jockey” and discuss how to “get rid of him.” Greg’s Towing subsequently lost the towing contract to AlleyCat.
The town defended what it called its sound business judgment, saying AlleyCat was as qualified as Ashkar’s company to perform towing services. The town added that the officers’ alleged derogatory comments could not be imputed to the town officials who decided to go with AlleyCat.
The Prince George’s County Circuit Court jury ruled for Ashkar and awarded him $244,212 in economic damages and $15,000 in noneconomic damages.
But Prince George’s County Circuit Judge Toni E. Clarke issued a judgment notwithstanding the verdict, or JNOV, ruling that Ashkar had neither provided “direct evidence” of discrimination by Riverdale Park nor established that the town’s stated business reason for choosing AlleyCat was a pretext to disguise illegal bias.
In reinstating the verdict, the Court of Special Appeals ruled that Riverdale Park’s motion for a JNOV should have been denied because deference was owed to the jury’s determination that illegal bias was the true reason for Greg’s Towing having been passed over.
“The question comes down to whether Ashkar, based on the evidence admitted at trial, satisfied the test (of) whether the claim that the use of the business judgment rule and the presence of AlleyCat on the county tow list was a pretext and that the (town’s decision) was a product of unlawful discrimination.” Judge Glenn T. Harrell Jr. wrote in the Court of Special Appeals’ unreported 2-1 decision.
“Viewing the facts of the record in the light most favorable to the non-moving party (Ashkar), a jury could come to the reasonable conclusion that use of the county tow list as a non-discriminatory basis for selecting AlleyCat was no more than a pretext for denying Ashkar the contract based on race,” added Harrell, a retired judge sitting by special assignment.
Harrell was joined in the decision by Judge Dan Friedman.
Judge Melanie M. Shaw Geter dissented, stating that the JNOV was proper because Ashkar’s evidence did not rise above “speculation, hypothesis and conjecture.”
Riverdale Park then sought review by the high court.
The Court of Appeals is expected to render its decision by Aug. 31 in Town of Riverdale Park v. Mamoun K. Ashkar et al., No. 49 September Term 2020.