Maryland Commission on Human Relations v. Downey Communications, Inc.

HOLLANDER, Judge. 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 ⁵⁰³ directly from the circuit court a permanent injunction restraining the employer from filing suit. 1 Multiple issues have been raised by the parties. The first of these is presented by Downey; the remaining issues are presented by the Commission: 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)? ⁵⁰⁴ 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. FACTUAL BACKGROUND 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 ⁵⁰⁵ 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 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. 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 ⁵⁰⁶ 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. 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: 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 ⁵⁰⁷ complaint was filed after the expiration of the six month statute of limitations, set forth in Article 49B, § 9A. 3 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 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 employment offer to Walters. Cohen wrote: “All you have to do is read the correspondence in question, and see that for yourself. Notwithstanding that, for the better part of a year you have harassed Downey ... because [it] has the misfortune of being located on the same floor as MMI.” The letter also contended that the Commission’s subpoena constituted a “fishing expedition” intended to salvage the untimely claim against MMI by “pin[ning] an alleged MMI employment offer on [Downey].” In addition, Cohen argued that the subpoena was “not authorized” by law or by the Commission’s regulations, in that it sought material that was not “relevant” or “necessary” for its investigation within the meaning of Article 49B, § 11(d).

He also asserted that the subpoena was “grossly overbroad ⁵⁰⁸ and burdensome” because it effectively sought “every single document ” in Downey’s possession and would bring Downey’s operations “to a virtual standstill for weeks.” (Emphasis in original). Cohen particularly objected to the Commission’s request for documents pertaining to Downey’s office supplies, saying, “This example speaks volumes about the abuse your subpoena attempts to inflict. The identity of, e.g., the purchaser of the paper clips sheds no light on the issue of who allegedly discriminated against the Complainant.” (Emphasis in original). In his criticism of Sykes’s handling of the investigation, Cohen claimed that she was attempting to “harass and abuse” Downey, and added that Sykes had been “extremely abusive to counsel.” Cohen stated: Since you had MMI’s alleged employment letter from the start of this investigation, and you nevertheless investigated [Downey] for more than six months without any complaint being issued against MMI, we believe that this subpoena is a lame effort to cover up your ovwi mistake.

Your unprofessional conduct toward counsel for the Respondent supports this hypothesis. You have lost all objectivity, and you have no business remaining on this case. Further, Cohen asserted that Downey would not comply with the subpoena, and he demanded that it be withdrawn: Based on these objections, you must withdraw your subpoena. The Respondent will vigorously contest any misguided effort to enforce the subpoena, and seek counter-remedies in any such proceeding.

Indeed, only the requirement to exhaust administrative remedies keeps the Respondent from suing you right now. Cohen concluded by saying: Any effort to enforce this subpoena would be absurd, but if you do so, we look forward to the opportunity of deposing you, and giving you a taste of your own medicine. Furthermore, if we have to spend the additional time and effort to protect ourselves from your excesses, be assured that we ⁵⁰⁹ will carefully consider all our remedies, including an action for abuse of process against you individually. (Emphasis in original).

Subsequently, Cohen warned Walters that Downey would file suit against her if she did not withdraw her charge. The first warning came in a letter dated April 11, 1995, sent to Walters at her Virginia home by certified mail. The letter asserted that Downey and MMI were separate companies, that Walters had applied for a position with MMI and not Downey, and that her offer of employment was on MMI letterhead. The letter stated: In short, you never applied for any employment with [Downey], you never communicated with [Downey], and [Downey] never took any employment action with respect to you.

Despite all of this, you have complained that [Downey] has discriminated against you, causing [Downey] to incur substantial costs in defending itself against a totally baseless claim. You have failed to withdraw your complaint against [Downey] despite being repeatedly advised of your error in complaining against the wrong company. If you do not withdraw your complaint against [Downey] within seven days from the date of this letter, then [Downey] will have no alternative but to pursue all legal remedies against you, including but not limited to an action against you personally for malicious prosecution or abuse of process. (Emphasis in original).

On or about April 17, 1995, an Arlington County deputy sheriff delivered another copy of the letter to Walters at her home. On April 24,1995, the Commission filed a petition to enforce its subpoena. At the same time, relying, inter alia, on Article 49B, § 4, the Commission filed a petition for ex parte, interlocutory and permanent injunctive relief, under oath, and executed by the Commission’s deputy director, general counsel, and assistant general counsel. The petition, which was supported by an affidavit from Sykes, alleged that Downey had threatened to sue both Walters and Sykes, and it claimed that Downey’s letter of April 11, 1995 was intended to threaten, ⁵¹⁰ harass, and intimidate Walters to prevent her from proceeding with her employment discrimination complaint.

The petition averred: If [Downey] is permitted to continue to systematically threaten [Walters] and the Commission official charged with the investigation of this matter, it will severely undermine the Commission’s mandate to investigate employment discrimination, when it is alleged and remedy it, if found to exist. Based on these contentions, the Commission sought to enjoin Downey from (1) “threatening” to sue Walters if she did not withdraw her charge, (2) threatening to sue Sykes, and (3) “taking any further actions against Ms. Walters or other employees or former employees of [Downey] or MMI or other witnesses in retaliation for her pursuing a complaint with the Commission or participating in this injunction proceeding.” Downey responded by filing an affidavit from Loretta Downey, the chief executive officer of the company, which asserted that “this is a case of mistaken identity.” It also repeated Downey’s contention that it had been MMI, and not Downey, that had made the employment offer in question, and that Downey “had no involvement whatsoever in the employment process.” Ms. Downey added that Walters’s “claim was completely spurious, because it was known that she was pregnant before the offer was made, and therefore her pregnancy had no bearing on [the] withdrawal of the offer.” The affidavit further asserted that Sykes was carrying out a “vendetta” against Downey to “cover up her mistake” of letting the six month limitations period lapse. It also repeated the allegation that the Commission’s subpoena was too broad and burdensome. In the concluding paragraphs of the affidavit, Ms. Downey stated: [Downey] is struggling; we just stopped publication of our flagship magazine, after running losses in the millions.

Over the past ten months, I have watched with horror as [Downey] has incurred mounting legal fees to defend ⁵¹¹ against this vindictive action. MMI is a successful company. If the Commission had filed a timely complaint against MMI, MMI would have defended it vigorously. Instead, [Downey] has to spend its time and money defending this frivolous action, when it had no involvement in the offer of employment at all.

Now, the Commission has faxed a petition for ex parte relief to my attorney on a Friday, when he was in Boston, demanding a hearing on Monday morning. This is bureaucracy gone wild. The Commission’s own governing statute specifically provides that respondents retain all rights to legal actions against complainants. The Commission is annoyed at our impudence in pointing this out to Ms. Walters, after ten months of suffering.

I implore the Court to right this wrong, and not let the petty obsessions of bureaucrats cause us any further harm. (Emphasis in original). After a chambers conference held that same day (April 24, 1995), the judge signed a written order stating that he was “not ... satisfied” that the Commission had met its burden and, therefore, he denied the “ex parte petition.” The order does not address the Commission’s request for interlocutory or permanent injunctive relief, however. The parties advise us in their briefs that, on May 1, 1995, after the denial of the request for the injunction but before the Commission noted its appeal, Downey filed suit against Walters in the Circuit Court for Arlington County, Virginia, for breach of contract and either malicious prosecution or abuse of process, seeking $95,000.00 in damages.

According to Downey, the breach of contract count is based on an allegation that Walters breached a settlement agreement in the sex discrimination case, allegedly executed in December 1994. While we have not been provided with a copy of the suit, the parties agree that the case is still pending in the Virginia court. The parties also inform us that, on December 27, 1995, the Commission transferred Walters’s complaints against both Downey and MMI to the federal Equal Employment Opportunity ⁵¹² Commission (“EEOC”) for completion of the investigation. The Commission states that this transfer was made pursuant to a worksharing agreement between the two agencies.

DISCUSSION' I. We first consider Downey’s contention that the Commission’s appeal is moot, because (1) it has already filed suit against Walters; (2) the Commission transferred Walters’s case to the EEOC; and (3) we cannot interfere with judicial proceedings in another state. In view of the transfer to the EEOC, Downey asserts that there is no longer a Commission investigation with which Downey’s actions would interfere. Moreover, as Walters has already been sued, she is no longer “threatened” with litigation, so that the Commission’s request for an injunction is too late. Downey adds that, because it filed suit in Virginia, any injunction would impermissibly “interfere” with the judicial processes of another jurisdiction.

In our view, the matter is not moot. “ ‘A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.’ ” Insurance Commissioner of the State of Maryland v. Equitable Life Assurance Society of the United States, 339 Md. 596, 613 , 664 A.2d 862 (1995), quoting Attorney General v. Anne Arundel County School Bus, 286 Md. 324, 327 , 407 A.2d 749 (1979). See also Adkins v. State, 324 Md. 641, 646 , 598 A.2d 194 (1991); Koontz v. Association of Classified Employees, 297 Md. 521, 529 , 467 A.2d 753 (1983); Beeman v. Department of Health and Mental Hygiene, 105 Md.App. 147, 157 , 658 A.2d 1172 (1995); Williams v. Williams, 63 Md.App. 220, 225 , 492 A.2d 649 (1985). The doctrine of mootness applies to situations in which “past facts and occurrences have produced a situation in which, without any future action, any judgment or decree the court might ⁵¹³ enter would be without effect.” Hayman v. St. Martin’s Evangelical Lutheran Church, 227 Md. 338, 343 , 176 A.2d 772 (1962). When we determine that a case is moot, our usual practice is to dismiss the appeal.

See In re Riddlemoser, 317 Md. 496, 502 , 564 A.2d 812 (1989); Lucky Stores, Inc. v. Board of Appeals of Montgomery County, 270 Md. 513, 538 , 312 A.2d 758 (1973); Md. Rule 8-602(a)(10). This practice derives from the principle that appellate courts do not render advisory opinions on academic or abstract propositions. See County Commissioners of Charles County v. Secretary of Health and Mental Hygiene, 302 Md. 566, 568 , 489 A.2d 1127 (1985); Bishop v. Governor of Maryland, 281 Md. 521, 524 , 380 A.2d 220 (1977); Lloyd v. Board of Supervisors of Elections of Baltimore County, 206 Md. 36, 39 , 111 A.2d 379 (1954). See also National Collegiate Athletic Association v. Tucker, 300 Md. 156 , 476 A.2d 1160 (1984) (appeal from issuance of injunction ordering N.C.A.A. to allow student-athletes to play in remaining lacrosse games of season was moot, where students had played in those games and season had ended); State v. Ficker, 266 Md. 500, 507 , 295 A.2d 231 (1972) (State’s suit to enjoin candidate from unlawfully posting political signs on public property was moot, where acts sought to be enjoined had ceased and offending signs had been removed).

As we have observed, Downey contends that this case is moot because the Commission sought to prevent Downey from “threatening” to take action against Walters, but Downey has already filed suit against her. The Commission’s petition, however, did not seek only to enjoin Downey from “threatening” to take action against Walters; the Commission also sought to enjoin Downey “from taking any further actions” against Walters “in retaliation for her pursuing a complaint.” “Any further actions” includes actually suing Walters. Thus, the Commission’s request is not moot; there is still a live controversy about Downey’s current action of ⁵¹⁴ pursuing its lawsuit against Walters in Virginia, for which there could be an effective remedy. Nor can we accept Downey’s related argument that such an injunction is unavailable because it would “interfere with the judicial proceedings of another jurisdiction.” Courts of equity in Maryland have the authority, under appropriate circumstances, to restrain persons within their jurisdiction from prosecuting actions in the courts of other states.

See State v. 91st Street Joint Venture, 330 Md. 620, 629 , 625 A.2d 953 (1992); Miller v. Gittings, 85 Md. 601, 618-20 , 37 A. 372 (1897); Keyser v. Rice, 47 Md. 203, 213 (1877). This authority is not based on any supposed right of a Maryland court to interfere with a court of another state, but is instead founded upon the equity court’s authority over persons within its own jurisdiction “to restrain them from doing acts which will work wrong and injury to others, and are contrary to equity and good conscience.” Keyser, 47 Md. at 213 . We also reject Downey’s contention that the transfer of Walters’s case to the EEOC renders this appeal moot because there is no longer any Commission investigation that Downey’s conduct could allegedly hamper. The Commission argued in its request for injunctive relief that Downey’s actions would “severly undermine” the agency’s ability to investigate and remedy employment discrimination.

According to the Commission, a lawsuit against Walters would intimidate her and others from prosecuting discrimination claims and would thus inhibit the Commission’s ability to carry out its mandate. This alleged injury clearly survives the transfer of Walters’s case to the EEOC. Moreover, FEPA “is but a component in a comprehensive national civil rights enforcement scheme.” Parlato v. State Commission on Human Relations, 76 Md. App. 695, 705 , 548 A.2d 144 (1988), cert. denied, 314 Md. 497 , 551 A.2d 867 (1989). Therefore, even if Walters’s case is now being handled by the EEOC, Downey’s activities could have an adverse impact on the Commission’s investigatory abilities.

We conclude from the foregoing that the instant case still presents an actual grievance for which a court could fashion an ⁵¹⁵ effective remedy. Therefore, the matter is not moot. 5 II. We next turn to the merits of the injunction request. An “injunction” is “a writ framed according to the circumstances of the case commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience.” 12 Maryland Law Encyclopedia, Injunctions § 1 at 250 (1961).

There are, generally, three types of injunctions: ex parte injunctions, interlocutory injunctions (also known as “preliminary” or “temporary” injunctions), and permanent or final injunctions. 6 An ex parte injunction is “an injunction granted ex parte by the court without an adversary hearing on the propriety thereof.” Md. Rule BB70b. 7 It is reserved for a narrow set of cases, in which the applicant must establish “from specific facts shown by affidavit, or a verified pleading with or without supporting affidavit or sworn testimony, that immediate, substantial and irreparable harm will result to the applicant before an adversary hearing can be had.” Md. Rule BB72a (emphasis supplied). Ex parte injunctions are ⁵¹⁶ “intended to suspend action until an opportunity is afforded the defendants to answer and defend.” Harford County Education Association v. Board of Education of Harford County, 281 Md. 574, 585 , 380 A.2d 1041 (1977). The judge may grant the injunction without consulting the opposing party, but the injunction must expire after a very brief time period established by Rule BB72b. Moreover, the enjoined party has the right to request relief and to have a hearing “at the earliest possible time.” Md. Rule BB72b & c.

An “interlocutory injunction” is defined in the Maryland Rules as “an injunction granted after an adversary hearing on the propriety thereof, but before a determination of the merits of the action.” Md. Rule BB70c. Its purpose is to preserve the status quo between the parties, pending a hearing on the merits. See Harford County Education Asso ciation, supra, 281 Md. at 585, 380 A.2d 1041 ; Kahl v. Consolidated Gas, Electric Light & Power Co. of Baltimore, 189 Md. 655, 658 , 57 A.2d 331 (1948); TJB, Inc. v. Arundel Bedding Corp., 63 Md.App. 186, 190 , 492 A.2d 365 (1985); General Motors Corp. v. Miller Buick, Inc., 56 Md.App. 374, 386 , 467 A.2d 1064 (1983), cert. denied,. 299 Md. 136 , 472 A.2d 999 (1984). In other words, this type of injunction is designed to maintain the “last actual, peaceable, noncontested status which preceded the pending controversy” until the parties’ rights and obligations can be adjudicated in a full trial.

See State Department of Health and Mental Hygiene v. Baltimore County, 281 Md. 548 , 556 n. 9, 383 A.2d 51 (1977) (quotation omitted). In order to obtain an interlocutory injunction, the party seeking the injunction has the burden to satisfy the following four criteria: (1) there is a real probability that the party seeking the injunction will succeed on the merits; (2) the' injury that would be suffered if the interlocutory injunction is granted is less than the harm that would result from its refusal (the “balance of convenience test”); ⁵¹⁷ (3) the party seeking the injunction will suffer irreparable injury if it is not granted; and (4) granting the injunction would be in the public interest. Fogle v. H & G Restaurant, Inc., 337 Md. 441, 455-56 , 654 A.2d 449 (1995); Department of Transportation v. Armacost, 299 Md. 392, 404-05 , 474 A.2d 191 (1984); Teferi v. Dupont Plaza Associates, 77 Md.App. 566, 578 , 551 A.2d 477 (1989). But, “in litigation between governmental and private parties, or in cases in which injunctive relief directly impacts governmental interests, ‘the court is not bound by the strict requirements of traditional equity as developed in private litigation.’” Fogle, supra, 337 Md. at 456 , 654 A.2d 449 , quoting State Department of Health and Mental Hygiene v. Baltimore County, supra, 281 Md. at 555, 383 A.2d 51 .

Rather, “ ‘[c]ourts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.’ ” Fogle, 337 Md. at 456 , 654 A.2d 449 , quoting Space Aero Products Co., Inc. v. R.E. Darling Co., Inc., 238 Md. 93, 128 , 208 A.2d 74 , cert. denied, 382 U.S. 843 , 86 S.Ct. 77 , 15 L.Ed.2d 83 (1965). A permanent injunction is, as its name indicates, “an injunction final or permanent in its nature granted after a determination of the merits of the action.” Md. Rule BB70d. But a permanent injunction is not “permanent” in the sense that it must invariably last indefinitely. Rather, it “is one granted by the judgment which finally disposes of the injunction suit.” 43 C.J.S. Injunctions § 6 (1979).

The difference between an interlocutory injunction and a permanent injunction turns on “whether there has been a determination on the merits of the claim. If that determination has been made, then the injunction may be final; if not, it is interlocutory.” National Collegiate Athletic Association v. Johns Hopkins University, 301 Md. 574, 580 , 483 A.2d 1272 (1984). In this case, the parties address the propriety of the circuit court’s denial of the injunction by arguing about whether the court correctly denied a request for an interlocutory ⁵¹⁸ injunction. They discuss whether the Commission satisfied the four interlocutory injunction factors.

The Commission makes no reference to the “immediate, substantial and irreparable injury” standard for granting an ex parte injunction. Nor does it argue why it needed the injunction “before an adversary hearing can be had.” Additionally, the Commission does not refer to Maryland Rule BB72, which governs ex parte injunctions. It is plainly evident to us that the court did not resolve the interlocutory injunction request. While the Commission sought a “Petition for Ex Parte, Interlocutory and Permanent Injunctive Relief,” the court’s order indicates only that it ruled upon the Commission’s request for an ex parte injunction.

The court stated that it considered “Plaintiffs Petition for Ex Parte[,] Interlocutory[,] and Permanent Injunctive Relief,” but it then said that, because it was “not ... satisfied that the burden has been shown,” “Plaintiff’s ex parte petition is DENIED.” (Italics added;' capitalization in original). Court orders are construed in the same manner as other written documents. Hosain v. Malik, 108 Md.App. 284, 310-11, 671 A.2d 988 (1996). Moreover, the docket entries state that, on April 25, 1995, an order denying the plaintiffs “ex parte petition” was filed.

Cf. Md. Rule BB73 (“When an application for an ex parte injunction has been filed and denied, an order to that effect shall be signed by the court and filed with the clerk.”). In reaching our conclusion as to the scope of the court’s ruling, we also consider the circumstances under which the court signed the order. The judge executed the order after a chambers conference conducted on the same day on which the Commission filed its petition—a time frame and meeting place that are consistent with a ruling on an ex parte injunction.

Furthermore, and most notably, no adversary hearing was ever conducted in open court, and no proceedings took place at which evidence was introduced. While the court decided only the ex parte injunction request, the Commission has not addressed whether the court ⁵¹⁹ erred in denying that request. We need not entertain a challenge to a lower court decision if the appellant does not present a legal argument in support of its position. Ricker v. Abrams, 263 Md. 509, 516 , 283 A.2d 583 (1971) (point not raised in brief or in argument must be regarded as waived); Hartford Accident & Indemnity Co. v. Scarlett Harbor Associates Limited Partnership, 109 Md.App. 217 , 288 n. 18, 674 A.2d 106 (1996) (where point of error was stated in question presented, but party presented no argument in support of its position, question could not be considered); Monumental Life Insurance Co. v. United States Fidelity & Guaranty Co., 94 Md.App. 505, 543-44 , 617 A.2d 1163 , cert. denied, 330 Md. 319 , 624 A.2d 491 (1993) (where brief did not contain an argument, but merely made reference to an argument contained elsewhere, argument would not be considered); Jacober v. High Hill Realty, Inc., 22 Md.App. 115, 125 , 321 A.2d 838 , cert. denied, 272 Md. 743 (1974) (“We decline to consider the argument as it was not presented in the brief.”).

In Layman v. Layman, 84 Md.App. 183 , 578 A.2d 314 (1990), a case in which the appellant did not challenge a critical ruling of the trial court, we said: “A question not presented or argued is waived and not preserved for review. ... Our function does not include scouring the record for error once a party notes an appeal and files a brief.” Id. at 191 , 578 A.2d 314 (citations omitted). In this case, appellant seemingly challenges an order that the lower court did not make, but has failed to challenge the order that the court did enter. In addition, because there is no transcript of the chambers conference, we cannot determine whether the contentions that the Commission has presented here were also raised below.

See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court.”). Accordingly, for this reason, we decline to address whether the trial court properly denied the ex parte injunction. The circuit court’s denial of the ex parte injunction leaves unresolved the Commission’s requests for interlocutory and ⁵²⁰ final injunctions. As this case presents several issues of first impression, we shall exercise our discretion and address these issues for the guidance of the court on remand.

The central issue concerns the request to enjoin Downey’s threats to sue Walters and the prosecution of a suit against Walters. 8 It is well settled that an injunction to restrain the prosecution of a lawsuit is permissible. See, e.g., Michael v. Rigler, 142 Md. 125 , 120 A. 382 (1923); Colwell v. Rogers, 127 Md. 291 , 96 A. 433 (1915). Such an injunction is utilized to prevent [a party] from using the process of courts of law where it would be contrary to good conscience to allow the party, or parties, to proceed. This class of injunctive relief is based upon the ground that some unfair advantage is being obtained, or has been obtained, in the law court, which, under the circumstances, equity, alone, can prevent from becoming effective.

Kardy v. Shook, 237 Md. 524, 532-33 , 207 A.2d 83 (1965). See also Methodist Protestant Church v. Mayor and City Council of Baltimore, 6 Gill 391, 402 (Md.1848) (injunction will be issued where the equity court is “prompted by conscience to prevent wrong and injustice” perpetrated by the maintenance of the other suit). See generally 42 Am. Jur. 2d Injunctions § 204 (1969).

A court will not enjoin a lawsuit, however, simply to prevent the multiplicity of suits, without regard to other considerations. Peninsula Construction Co. v. Merritt, 90 Md. 589, 591 , 45 A. 172 (1900). In considering a request to enjoin a lawsuit, a court must consider whether the suit is contrary to equity and good conscience, or if it provides an “unfair advantage.” See Kardy v. Shook, supra, 237 Md. at 533 , 207 A.2d 83 . A court must also consider if an injunction is needed “to prevent the ⁵²¹ making of an unfair use of a court of law in order to deprive another party of his just rights or subject him to some unjust vexation or injury.” 42 Am.

Jur. 2d Injunctions, supra, § 204. We recognize, however, that the grant or denial of an injunction lies within the sound discretion of the circuit court, see Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp., 92 Md.App. 267, 272 , 607 A.2d 584 , cert. denied 328 Md. 237 , 614 A.2d 83 (1992), and that the court’s decision will not be disturbed on appeal absent a showing of an abuse of discretion. See Scott v. Seek Lane Venture, Inc., 91 Md.App. 668, 694 , 605 A.2d 942 , cert. denied, 327 Md. 626 , 612 A.2d 257 (1992). “Nevertheless, even with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal standards.” Alston v. Alston, 331 Md. 496, 504 , 629 A.2d 70 (1993).

III

In analyzing the Commission’s injunction request, the parties debate the applicability of two subsections in Article 49B that seem to conflict. The Commission relies on the “anti-retaliation provision” of FEPA, codified at Article 49B, § 16(f), to support its claim that it was entitled to an injunction to preclude Downey from filing suit or otherwise retaliating against Walters. Section 16(f) states: It is an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subtitle or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subtitle. Downey, on the other hand, relies on Article 49B, § 12(b) to support its contention that it had the right to sue Walters for her “baseless” claim, even during the course of the Commission’s investigation.

Section 12(b)(1) makes the malicious ⁵²² filing of a false discrimination charge a misdemeanor under some circumstances. It provides in part: Any person (including one acting for or on behalf of a firm, association, or corporation) is guilty of a misdemeanor if: (i) He has claimed to be aggrieved under the provisions of this subtitle; (ii) He has pursued the complaint under this section and § 11 of this subtitle, or either of these sections; (ni) The Commission has found the complaint to be unfounded or has dismissed it without further action against the respondent; and (iv) The court has found the complaint to have been made maliciously---- In addition, § 12(b)(2) provides: “This subsection shall not be construed or applied to deny the right of a respondent to bring any civil action against one who has filed a complaint under this subtitle.” In order to determine if Downey may be enjoined, we must analyze whether Downey is entitled to sue Walters while the Commission’s investigation is in progress and before the Commission reaches its “final disposition.” We must also address whether, based on § 16(f) of FEPA, the Commission may seek to enjoin Downey permanently from suing Walters, even after the agency process is completed. As we see it, this question concerns the Commission’s pursuit of an adjudication, outside of the statutorily prescribed FEPA enforcement process, that Downey has violated § 16(f). We address each of these questions in turn.

A. Downey allegedly seeks to adjudicate in Virginia at least some issues that were the subject of the Commission’s investigation. The Commission claims that Downey’s earlier threats and its subsequent lawsuit violate the public policy embodied in Article 49B, § 16(f). Arguably, Downey’s conduct had the purpose or effect of impeding and circumventing the agency’s investigatory and adjudicatory roles. Therefore, the Commis ⁵²³ sion sought interlocutory and permanent injunctive relief, relying, inter alia, on Article 49B, § 4.

Section 4 provides: “At any time after a complaint has been filed, if the Commission believes that appropriate civil action is necessary to preserve the status of the parties or to prevent irreparable harm from the time the complaint is filed until the time of its final disposition, the Commission may bring [an] action to obtain a temporary injunction” (Emphasis supplied). The Commission, as an administrative agency, is charged with investigating Walters’s employment discrimination claim against Downey. 9 Because the manner in which the Commission functions is important to our analysis, we shall review briefly the FEPA statutory scheme. Article 49B, § 10(a) provides: After the filing of any complaint, the Executive Director shall consider the complaint and shall refer it to the Commission’s staff for prompt investigation and ascertainment of the facts. The results of the investigation shall be made as written findings.

A copy of the findings shall be furnished to the complainant and to the person, firm, association, partnership or corporation (hereinafter referred to as the “respondent”) against whom or which the complaint is made. We stated in Parlato v. State Commission on Human Relations, supra, 76 Md.App. at 702 , 548 A.2d 144 , that “[t]he Commission investigation is conducted to protect the respondent against frivolous charges by ‘insuring] the reliability of the information in the complaint.’ ” (Quoting Gee v. Mass Transit Administration, 75 Md.App. 253, 261-62 , 540 A.2d 1194 (1988)). Moreover, “ ‘the investigative process [was designed to] flesh out the charges made by the individual before the respondent was called upon to answer them.’ ” Parlato, 76 Md.App. at 702 , 548 A.2d 144 (quoting Banach v. State Commission on Human Relations, 277 Md. 502, 514 , 356 A.2d 242 (1976)). ⁵²⁴ Section 10(b) instructs the Commission that, if it finds “probable cause” for believing that a discriminatory act has occurred, it “immediately shall endeavor to eliminate the discrimination by conference, conciliation, and persuasion.” The procedure to conduct hearings in the absence of an agreement to eliminate the acts of discrimination is set out in § 11(a). 10 “Only after [conciliation] efforts have failed do the charges of discrimination become formal, triggering the employer’s right to notice and a public hearing under § 11.” Parlato, 76 Md.App. at 702, 548 A.2d 144 . Section 11(e) provides for the issuance of cease-and-desist orders by the hearing examiner.

Section 11(g) provides further that, “[i]f upon all the evidence, the hearing examiner or the Commission finds that the respondent has not engaged in any alleged discriminatory act within the scope of the particular subtitle, it shall state its findings of fact and shall similarly issue and file an order dismissing the' complaint.” The respondent has the right to seek judicial review of an adverse decision issued by the hearing examiner pursuant to the Administrative Procedure Act. See Maryland Code, § 10-222(a)(1) of the State Government Article (1984, 1996 Repl.Vol). See also Kohli v. LOOC, Inc., 103 Md.App. 694, 712-13 , 654 A.2d 922 (1995); Maryland Commission on Human Relations v. Mayor & City Council of Baltimore, 86 Md.App. 167 , 586 A.2d 37 , cert. denied, 323 Md. 309 , 593 A.2d 668 (1991) ⁵²⁵ (reviewing the decision of the Commission’s Appeal Board under the Administrative Procedure Act standard). In addition, if a respondent fails to comply with a Commission order, § 12(a) provides a mechanism by which the Commission may seek judicial enforcement of its order.

The enforcement procedure entitles a respondent to obtain judicial review of a Commission order. Section 12(a) states: If any respondent refuses to comply with an order of the Commission made within the scope of any of these subtitles, the Commission may, represented by its general counsel, institute litigation in the appropriate equity court of the county or in Baltimore City where the alleged discrimination took place to enforce compliance with any of the provisions of this article. The court, in hearing said case, shall be governed by the judicial review standards as set forth in the Administrative Procedure Act, Title 10, Subtitle 2 of the State Government Article of the Annotated Code of Maryland. The foregoing discussion makes clear that FEPA provides a carefully crafted mechanism for the investigation and resolution of employment discrimination claims, including judicial review of a decision unfavorable to the employer.

It includes an express