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State of Maryland on Human Relations v. Suburban Hospital Inc.12/26/1996
Dr. Bender's privileges.
I
A party requesting an injunction must show that it "has a real probability of prevailing on the merits. . . ." Fogle v. H & G Restaurant, Inc., 337 Md. 441, 456, 654 A.2d 449 (1995). As the Commission concedes, in this case, this requires a showing that FEPA applies to dealings between Dr. Bender and Suburban. Section 16(a)(1) provides:
(a) 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 . . . sex . . . .
Section 15(b) sets forth the Act's definition of the terms "employer" and "employee," reproduced below in relevant part:
For the purposes of this subtitle:
(b) Employer. -- The term "employer" means a person engaged in an industry or business who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .
(e) Employee. -- The term "employee" means an individual employed by an employer . . . .
Both parties agree that FEPA only forbids discrimination affecting an employment relationship. They differ, however, on the nature and extent of the relationship sufficient to form the basis of a FEPA claim. The Commission first argues that an employment relationship exists between Dr. Bender and the hospital, thus bringing Suburban's actions within the scope of FEPA. Suburban argues that Dr. Bender is an independent contractor and thus outside the scope of FEPA's protection.
We note at the outset that we have the discretion to rule only on matters of law in determining whether an employment relationship exists. Where the facts of a case are undisputed, we may rule on the inferences to be drawn from the facts as a matter of law, but when facts underlying the resolution of the question are themselves in dispute, we must remand the case to the trial court for the necessary factual findings. Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 75-76, 497 A.2d 803 (1985). In order to resolve this issue as a matter of law, we will resolve all possible disputes in favor of the Commission.
The issue of whether a doctor who has been denied staff privileges at a hospital has a colorable claim under Article 49B is one of first impression in Maryland. Furthermore, no Maryland case has determined the relationship between a doctor and a hospital at which he or she has privileges. We will begin our discussion by examining the Maryland common law of employment relationships; then we will move beyond the common law as this case requires.
In Maryland, at common law, employees are always agents of the principal, but not all agents are employees. Patten v. Board of Liquor License Comm'rs., 107 Md. App. 224, 238, 667 A.2d 940 (1995); Sanders v. Rowan, 61 Md. App. 40, 50, 484 A.2d 1023 (1984) ("Thus, while all masters are principals and all servants are agents, there are some principals who are not masters and some agents who are not servants."). Agents who are not employees are independent contractors. Id.; Brady v. Ralph Parsons Co., 308 Md. 486, 510, 520 A.2d 717 (1987). At common law, then, a finding of agency must precede an analysis of whether a person is an employee of another. State v. Cottman Transmissions, 86 Md. App. 714, 733, 587 A.2d 1190, cert. denied, 324 Md. 121, 596 A.2d 627 (1991). In Schear v. Motel Management Corp., 61 Md. App. 670, 487 A.2d 1240 (1985), we set forth the test for the exi
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