Maryland Com'n on Human Relations v. Downey Communications, Inc.

Citation678 A.2d 55,110 Md.App. 493
Decision Date01 September 1995
Docket NumberNo. 931,931
CourtCourt of Special Appeals of Maryland
Kathy M. Britton-Bracey, Asst. Gen. Counsel (Glendora C. Hughes, Gen. Counsel, on the brief), Baltimore, for appellant

Victor A. Kubli (Law Offices of Alan M. Grayson, on the brief), Germantown, for appellee.

Argued before WILNER, C.J., and HOLLANDER and SALMON, JJ.


In 1994, Margaret C. Walters filed a complaint with the Maryland Commission on Human Relations (the "Commission"), appellant, alleging that Downey Communications, Inc. ("Downey"), appellee, had discriminated against her because of her gender and pregnancy. During the course of the Commission's investigation, Downey threatened to take legal action against Walters unless she withdrew her complaint. The Commission responded by filing in the Circuit Court for Montgomery County a petition for ex parte, interlocutory and permanent injunctive relief, seeking to enjoin Downey from threatening, harassing, or suing Walters. After the circuit court denied the ex parte request, the Commission noted its appeal. Downey proceeded to file suit against Walters in Virginia, where Walters resides.

We now consider whether an employer under investigation by the Commission for violation of the Maryland Fair Employment Practices Act ("FEPA"), Maryland Code (1957, 1994 Repl. Vol.), Article 49B, §§ 14-18, may be enjoined from pursuing a lawsuit against the complainant during the pendency of the investigation and before the agency has completed its adjudicatory function. We shall also determine whether, based on the employer's alleged violation of the anti-retaliation provision of FEPA, Article 49B, § 16(f), the Commission may bypass the FEPA statutory scheme and obtain Multiple issues have been raised by the parties. The first of these is presented by Downey; the remaining issues are presented by the Commission:

directly from the circuit court a permanent injunction restraining the employer from filing suit. 1

I. Whether this matter is moot?

II. Whether the lower court erred in refusing to enjoin Downey from harassing and threatening to take civil action against Margaret Walters for filing an employment discrimination complaint with the Maryland Commission on Human Relations?

A. Whether the lower court erred in finding that the Commission had not met its burden of showing irreparable harm?

B. Whether there is a likelihood of success on the merits of Walters's case?

C. Whether it is against the public policy of the State of Maryland to permit a respondent, complained against before the Commission, to threaten and/or file suit against a complainant before the Commission has completed its investigation?

D. Whether refusing to issue the injunction caused greater harm than issuing the injunction would have caused to the Appellee?

III. Whether the lower court erred in interpreting Article 49B, Section 12 of the Maryland Code to permit a respondent employer to threaten to bring a civil action against a complainant for filing an employment discrimination complaint, despite the respondent's retaliatory motive?

A. Whether threatening to file a civil action against a complainant by a respondent complained against in an employment discrimination complaint constitutes retaliation under Article 49B, Section 16(f)?

B. Whether the threats and/or institution of a civil suit against Walters for refusing to withdraw her employment discrimination complaint was for the impermissible purpose of retaliating against her for the exercise of her protected right?

We shall affirm the denial of the ex parte injunction. As the trial court did not resolve the Commission's requests for interlocutory and permanent injunctions, however, we shall discuss these matters for the guidance of the court. We conclude that, prior to the agency's resolution of its investigatory and adjudicatory functions, an employer may be enjoined from pursuing a lawsuit against a claimant, if the suit involves essentially the same issues under consideration by the Commission, and the Commission has subject matter jurisdiction. We conclude, further, that the Commission may not bypass the FEPA statutory scheme and obtain a final injunction from the circuit court, based on a determination that an employer has violated FEPA's anti-retaliation provision.


On June 9, 1994, Walters, who is a resident of Arlington, Virginia, filed with the Commission a sworn complaint against Downey. In her complaint, Walters alleged that, in April 1994, she had applied for a "manager of client service" position. She further stated that she was "extensively interviewed for the position on separate occasions" and that, on June 1, 1994, Harvey Richmond, the vice president of sales and marketing, orally extended an offer of employment. This oral offer was followed by a written confirmation letter dated June 3, 1994.

Walters contended that, on June 7, 1994, she called Richmond and accepted the offer. At the same time, she advised him that she was pregnant and that her baby was due in October 1994. Walters alleged that Richmond then indicated to her "that he would manage the situation internally." Later that same day, according to Walters, Richmond informed her that the company had agreed to purchase a new data base Downey, an Illinois corporation that publishes magazines such as Military Life, Military Grocer, and Military Exchange, claims that Walters never applied for a position with Downey. Instead, Downey claims that Walters applied for a position with, and was offered a position by, Marketing & Management Information, Inc. ("MMI"), a company that is located on the same floor of an office building as Downey. According to Downey, MMI is a District of Columbia corporation that processes and distributes sales and marketing data. Downey alleges that Richmond's offer to Walters was on MMI letterhead.

system, and that the requirements for the position for which she was to be hired had therefore changed. As a result, Richmond rescinded the job offer. Two days later, Walters filed her charge with the Commission, alleging that Downey had discriminated against her on the basis of her gender and pregnancy, in violation of FEPA. 2

The record contains a photocopy of a letter that purports to be the offer letter from Richmond to Walters; the letter is, in fact, on MMI letterhead. It does not appear, however, that the Commission submitted this letter to the circuit court in connection with its petition for injunctive relief. Rather, the Commission attached the letter as an exhibit to its memorandum in support of a simultaneous petition to enforce a subpoena duces tecum that it had served on Downey. The next succeeding paper in the record is a list of Downey employment benefits. In its effort to enforce the subpoena, the Commission contended that the list of Downey employment benefits was mailed to Walters with the offer letter. In addition, the The record also contains a letter to Walters from Downey's legal counsel, Alan M. Grayson and Fred A. Cohen, dated June 27, 1994. The letter stated that Downey was "very proud of its long, unblemished record of fair and equal employment practices, which has never been questioned before." Counsel wrote:

record contains a Federal Express mailing label that identifies the sender as "Harvey A. Richmond" of "Downey Communications" and the recipient as Walters. It also appears from these documents that Downey's mailing address is the same as MMI's mailing address.

Downey wants you to know that there is nothing about you, including the fact that you are pregnant, that had any influence whatsoever on the requirement to delay the challenged hiring decision. The offer that was made to you was not consummated because of business circumstances that did not exist at the time the offer was made.

The letter explained the change in Downey's computer operating system and said: "Your pregnancy was in no way involved in the decision to delay hiring," and, "We are sorry that you feel discriminated against because you were pregnant."

Counsel added that Downey "underst[ood] [Walters's] disappointment," and, "[i]n this spirit," Downey offered to settle Walters's claim by paying her the after-tax difference between one year of the compensation package that was offered to her and one year of the compensation that she was then receiving from her employer. The letter does not contain a denial that Downey had offered a job to Walters or a claim that she was pursuing the wrong company.

In December 1994, Walters filed an amended charge with the Commission, in which she added MMI as a respondent. Although the charge was submitted in December 1994, it was dated June 9, 1994. In response, Cohen, as the attorney for both Downey and MMI, contended in a letter to the Commission that the charges of discrimination were unfounded and that the Commission lacked jurisdiction, because the amended The Commission pursued the theory that Downey and MMI were "integrated businesses" and "sister corporations." On January 17, 1995, the Commission served a subpoena on Downey, demanding the production of various categories of documents pertaining to both businesses, including "[a]ll documents related to any partnerships, joint ventures, or other combinations or enterprises, without limit, among, between, or involving in any way [MMI, Downey, and certain named individuals]," and all documents related to Downey's equipment, financing, temporary personnel, and office supplies. 4

complaint was filed after the expiration of the six month statute of limitations, set forth in Article 49B, § 9A. 3

Cohen responded on March 14, 1995 with a sharply worded letter to Elaine Sykes, the Commission official assigned to investigate Walters's complaint. The letter repeated Downey's contention that it was MMI, and not Downey, that had made the...

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