Md.-Nat'l Cap. P. & P. Comm'n v. Crawford

307 Md. 1 (1986) 511 A.2d 1079 THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION ET AL. v. ELSIE CRAWFORD. THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION v. ELSIE CRAWFORD. Nos. 110, 121, September Term, 1984. Court of Appeals of Maryland.

July 16, 1986. Arthur S. Drea, Jr., Gen. Counsel and D.S. Sastri, Thurman H. Rhodes, Associate Gen. Counsel, on brief, Hyattsville, for appellants.

Risselle Rosenthal, Fleisher, Gen. Counsel, Baltimore, on brief for amicus curiae State of Md. Com'n on Human Relations. Stephen H. Sachs, Atty. Gen., Diana G. Motz, Asst.

Atty. Gen., Kathryn M. Rowe, Staff Atty., Robert A. Zarnoch, Asst. Atty. Gen., Baltimore, on brief for amicus curiae State of Md. Karl G. Feissner and John E. Beckman, Eric S. Slatkin and Feissner & Beckman, on brief, Langley Park, for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY, JJ., and CHARLES E. ORTH, Associate Judge of the Court of Appeals of Maryland (retired) and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned. ELDRIDGE, Judge. Elsie M. Crawford brought this action for damages and injunctive relief against her employer, the Maryland-National Capital Park and Planning Commission, and three officers thereof, after she had been denied an employment transfer allegedly because of her race. She specifically grounded her action on 42 U.S.C. § 1983 and on the Maryland Constitution.

The Circuit Court for Prince George's County (Bowen, J.), sitting without a jury, found that the plaintiff had been denied her Fourteenth Amendment rights and was entitled to relief under § 1983, awarded her $500 in damages, ordered the Commission to grant the transfer, and awarded counsel fees under 42 U.S.C. § 1988 . The Commission appealed to the Court of Special Appeals, which affirmed the judgment of the trial court. We granted the Commission's petition for a writ of certiorari, which raised questions as to whether Mrs. Crawford properly exhausted her administrative remedies and whether she had been wrongfully discriminated against. A separate appeal concerns the counsel fees awarded by the trial court.

I. The pertinent facts are as follows. Elsie M. Crawford is employed as a secretary, grade III, at the Maryland-National Capital Park and Planning Commission. In August 1982 she applied for a transfer to a vacant position at the same grade in the History Division of the Department of Parks and Recreation, which is a part of the Commission. Two months later a three member interview panel, chaired by the Coordinator of the History Division, interviewed Mrs. Crawford and three other applicants.

The panel unanimously ranked Mrs. Crawford as first choice, followed by Nadine Callahan. The chairman of the interview panel forwarded the results of the interviewing process through the hierarchy of officials responsible for hiring. Later, the personnel manager sent Mrs. Crawford a memorandum stating that she had not been selected. Ms. Callahan was hired instead.

Ms. Callahan is black, and Mrs. Crawford is white. The Commission maintained a so-called "affirmative action plan" until December 1984. This plan grew out of charges brought in 1977 against the Commission by the Equal Employment Opportunity Commission (E.E.O.C.) on behalf of two employees. The record does not disclose the nature of these charges, but the E.E.O.C. investigated and apparently found "reasonable cause" to pursue them.

The investigation yielded a "conciliation agreement" executed by the Executive Director of the Commission and by three persons at the E.E.O.C., an Equal Opportunity Specialist, a Supervisor of Compliance and an acting District Director. The conciliation agreement formed part of the Commission's Exhibit No. 1 in the circuit court. It contains no findings as to discriminatory practices at the Commission, and expressly states that the Commission admits no violations of the law. The agreement does contain the assertion that the Commission's "change rooms" have been desegregated since 1974 and that promotional vacancy announcements are equally accessible to all employees.

The gist of the agreement is a commitment on the part of the Commission to follow non-discriminatory personnel policies, and to make good faith efforts to employ minority employees in all job categories in proportion to their representation in the regional workforce by 1980. The good faith efforts were defined to include the use of annual numerical hiring goals. By 1980 the Commission had not met its goal of proportional representation in all job categories. The E.E.O.C. reviewed the progress reported quarterly under the conciliation agreement, made an "on-site visit review," and the parties entered a four year extension agreement.

This agreement bears the signatures of the Executive Director of the Commission and three persons at the E.E.O.C., including a District Director. The extension agreement contains specific numerical goals for various job categories, but its core is the following: "Respondent agrees that until the goals for black/minority hiring and promotions mutually agreed upon by the Commission and Respondent on December 15, 1980, are met, one black/minority applicant shall be hired or promoted for each non-minority applicant who is hired or promoted for all vacant positions...." This "one-for-one rule" provides for exceptions when no minority candidate responds to recruitment, and when the non-minority candidate is "clearly superior." The extension agreement expired in December 1984. The record shows that the affirmative action plan shaped the decision not to grant Mrs. Crawford's transfer request, although it is not clear from the record how the transfer of an employee from one position to another in the same grade could affect the Commission's compliance with the affirmative action plan. The chairman of the interview panel discussed the requirements of the plan with hiring officials before recommending Mrs. Crawford as "clearly more qualified," and the hiring officials considered the plan's requirements before deciding to pass over Mrs. Crawford.

Upon being denied the transfer, Mrs. Crawford obtained counsel and filed an administrative grievance within the Commission, alleging that she has been denied the transfer solely because of her race. The Commission answered, speaking through Hugh Robey, Director of the Parks and Recreation Department. Mr. Robey found that the interview panel had listed Mrs. Crawford as first choice but also had considered Ms. Callahan qualified. Mr. Robey further stated that the decision to hire Ms. Callahan accorded with the terms of the Commission's affirmative action plan.

Based on this conclusion, he denied the grievance. Mrs. Crawford then appealed to the Executive Director of the Commission. While her appeal to the Executive Director was pending, and before exhausting the final stage of the administrative grievance procedure by appealing any adverse decision by the Executive Director to the Commission's Merit System Board, Mrs. Crawford filed this lawsuit in the Circuit Court for Prince George's County. [1] Four days after Mrs. Crawford filed suit, the Executive Director issued his memorandum decision, which essentially restated the determination made earlier by Mr. Robey. Mrs. Crawford then took her final internal administrative appeal, this time to the Merit System Board of the Commission, in accordance with the Board's rules for grievances.

On April 15, 1983, the Merit System Board rendered its final decision, stating as follows: "Race was a determining factor in the non-selection of the appellant. The use of race in the selection for the position in question was not inconsistent with existing rules, practices, and policies of the Commission in the context of related case law." The Board's rationale for this decision was that the Commission's affirmative action plan authorized, but did not require, a preference for minority candidates on a list of qualified candidates. While the appeal to the Merit System Board was still pending, the Commission filed in the circuit court a demurrer to Mrs. Crawford's action on the ground that exhaustion of administrative remedies must occur before the court may exercise jurisdiction. The circuit court held a hearing on March 7, 1983, and subsequently overruled the demurrer.

The court issued orders on April 12, 1983, directing the Commission not to alter evidence or influence potential testimony in the case. Otherwise, the court did nothing in the matter until after the Merit Board's decision. After the Merit System Board's final decision on April 15, 1983, the defendants filed a motion raising preliminary objection, asserting that they were immune from suit. In the memoranda supporting the motion, the Commission claimed immunity from the 42 U.S.C. § 1983 action on the ground that it was a state agency and not a local government agency.

With regard to the plaintiff's state law action, the Commission contended that it was entitled to sovereign immunity as a state agency under Maryland law. It was further argued that, as the actions taken by the individual defendants "were taken in their official capacity and within the scope of their public duties," the individual defendants were entitled to the same immunity as the Commission. The plaintiff responded by arguing that the Commission and its employees enjoyed no immunity from suit under 42 U.S.C. § 1983 , citing Owen v. City of Independence, 445 U.S. 622 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980), and Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978).

The plaintiff further argued that any state law immunity had been waived by Code (1957, 1979 Repl.Vol, 1985 Cum.Supp.), Art. 49B, § 7(b)(1). [2] The circuit court thereafter overruled the motion raising preliminary objection. The case was tried on June 1 and June 2, 1983. After the trial, the court delivered an oral opinion finding "that the only reason Mrs. Crawford wasn't transferred was that she was white." The court further found that the Commission's affirmative action plan contained an exception suspending the "one for one" hiring rule when one among several "qualified" applicants for a position was "clearly" more qualified than any of the others. The court found that the plaintiff fell within this exception and that, therefore, the Commission had failed to follow its own affirmative action plan.

The circuit court also concluded that the defendants did not act with malice and that there was no basis for an award of punitive damages. The court determined that the plaintiff, in her action under 42 U.S.C. § 1983 , was denied the equal protection of the laws, should receive an award of $500 compensatory damages, and should be transferred to the position for which she had applied. On June 15, 1983, the court filed a mandatory injunction requiring the defendants to transfer the plaintiff Crawford to the position which she had sought. On the same date, judgment in favor of the plaintiff for $500 was entered.

Finally, plaintiff's counsel was given thirty days to file a petition for counsel fees under 42 U.S.C. § 1988 . The defendants on June 15, 1983, filed an order of appeal to the Court of Special Appeals from the order and judgment filed that day. Seven days later, on June 22, 1983, the circuit court, after a hearing, assessed counsel fees under § 1988 in the amount of $24,971.10 for the representation of the plaintiff in connection with the trial. Judgment for this amount was entered.

The court rejected an argument by the defendants that the order of appeal deprived the court of jurisdiction to award counsel fees, holding "that this is a collateral matter." Neither side filed an order of appeal from the circuit court's judgment for trial court attorneys' fees. In their appeal to the Court of Special Appeals, the defendants argued (1) that the circuit court erred in not sustaining the demurrer based on the alleged failure to exhaust administrative remedies, (2) that the refusal to grant the plaintiff's application was based on the affirmative action plan and therefore did not violate the plaintiff's right to equal protection of the laws, (3) that there was no showing of intentional discrimination so as to warrant damages and injunctive relief, and (4) that the circuit court erred in awarding counsel fees after the order of appeal was filed. [3] The Court of Special Appeals affirmed, Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 59 Md. App. 276 , 475 A.2d 494 (1984). Relying upon Patsy v. Florida Board of Regents, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982), and several state cases applying the Patsy holding to state court actions under 42 U.S.C. § 1983 , the Court of Special Appeals held that exhaustion of administrative remedies is not a prerequisite to maintaining a § 1983 action. 59 Md. App. at 290-291 , 475 A.2d 494 .

With regard to the merits, the intermediate appellate court held that "ample evidence was adduced to permit Judge Bowen to find that the Commission misapplied its own procedures by hiring a minority applicant over a `clearly more qualified' non-minority applicant for the singular reason of race." Id. at 299, 475 A.2d 494 . The appellate court also held that the plaintiff "Crawford [had] proved that appellants' discriminatory act with respect to her was deliberate and purposeful and not accidental or inadvertent." Id. at 301-302, 475 A.2d 494 . The fact that the defendants may not have intended to discriminate unconstitutionally against the plaintiff was deemed "of no moment." Id. at 302, 475 A.2d 494 . As to attorneys' fees, the Court of Special Appeals pointed out that the defendants' failure to appeal from the order assessing attorney's fees and the judgment for such fees resulted in the issue not being preserved for appellate review.

Id. at 304, 475 A.2d 494 . Nevertheless, the court went on to state that the circuit court did not err in awarding counsel fees after the order of appeal and that the amount of the fee awarded was not an abuse of discretion. Id. at 303-305, 475 A.2d 494 . The defendants then filed in this Court a petition for a writ of certiorari, raising two questions: (1) whether the decisions below concerning exhaustion of administrative remedies were erroneous; (2) whether the refusal to grant the plaintiff's transfer application was consistent with a valid affirmative action plan.

While the defendants' petition for a writ of certiorari was pending in this Court, the circuit court, upon the plaintiff's application, awarded an additional plaintiff's counsel fee of $37,384.59 for work done in connection with the proceedings in the Court of Special Appeals. The defendants filed an order of appeal from this additional counsel fee award. Thereafter this Court granted the defendants' petition for a writ of certiorari presenting the questions concerning exhaustion of administrative remedies and the validity of the defendants' personnel action. In addition, with regard to the appeal from the $37,384.59 counsel fee award for appellate representation, this Court on its own motion issued a writ of certiorari prior to any proceedings in the Court of Special Appeals.

Both cases were heard on the same day, and we shall dispose of both in this opinion.

II

In Patsy v. Florida Board of Regents, supra , the Supreme Court flatly held as follows: "we conclude that exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983." 457 U.S. at 516 , 102 S.Ct. at 2568 . While Patsy involved a § 1983 action brought in a federal court, the majority of state court decisions since Patsy have taken the position that the Patsy holding is applicable to a state court § 1983 action. See, e.g., Beitel v. Board of School Com'rs of Mobile, 419 So.2d 242, 245 (Ala.App. 1982); Logan v. Southern Cal. Rapid Transit Dist., 136 Cal.

App.3d 116, 124 , 185 Cal. Rptr. 878 (1982); Laurel Park, Inc. v. Pac, 194 Conn. 677, 690 , 485 A.2d 1272, 1279 (1984); Fetterman v. University of Conn., 192 Conn. 539, 549 , 473 A.2d 1176 (1984); Marker v. Talley, 502 A.2d 972 (Del.Super. 1985); Beverly Bank v. Board of Review, 117 Ill. App.3d 656, 661 , 72 Ill.Dec. 791 , 453 N.E.2d 96 (1983), cert. denied, 466 U.S. 951 , 104 S.Ct. 2153 , 80 L.Ed.2d 539 (1984); Stratos v. Dept. of Public Welfare, 387 Mass. 312 , 439 N.E.2d 778, 783 (1982); Bung's Bar & Grille, Inc. v. Florence Tp., 206 N.J. Super. 432 , 502 A.2d 1198, 1216 (1985); Montalvo v. Con. Ed., 92 A.D.2d 389, 403 , 460 N.Y.S.2d 784 (1983), aff'd 61 N.Y.2d 810 , 473 N.Y.2d 972 , 462 N.E.2d 149 (1984); O'Connors v. Helfgott, 481 A.2d 388, 391-392 (R.I. 1984); Kramer v. Horton, 125 Wis.2d 177 , 371 N.W.2d 801 (Wis.

Ct. App. 1985). See also Maddox v. Clac. County Sch. Dist.

No. 25, 293 Ore. 27, 35 , 643 P.2d 1253 (1982). A contrary position, holding that exhaustion of administrative remedies is required as a prerequisite to a state court § 1983 action, has been adopted by a few courts since Patsy. See Bartschi v. Chico Community Mem. Hosp., 137 Cal.

App.3d 502, 508 , 187 Cal. Rptr. 61 (1982); State ex rel. Basham v. Med. Licensing Bd., 451 N.E.2d 691, 694 (Ind.

App. 1983); Snuggs v. Stanley County Dept. Public Health, 310 N.C. 739, 740 , 314 S.E.2d 528 (1984). The defendants, as well as the amici, urge us to follow the minority position. They emphasize the Maryland policy that, where pursuant to a statute an administrative remedy is provided for a particular type of case, ordinarily the administrative remedy must be invoked and exhausted before judicial relief is available.

See, e.g., Bd. of Ed. for Dorchester County v. Hubbard, 305 Md. 774, 786 , 506 A.2d 625 (1986); Wash. Sub. San. Comm'n v. Mitchell & Best, 303 Md. 544, 553-554 , 495 A.2d 30 (1985); Comm'n On Human Rel. v. Mass Transit, 294 Md. 225, 230-233 , 449 A.2d 385 (1982); Prince George's County v. Blumberg, 288 Md. 275, 283-284 , 418 A.2d 1155 (1980), cert. denied, 449 U.S. 1083 , 101 S.Ct. 869 , 66 L.Ed.2d 808 (1981). [4] Of course, as we recently emphasized in County Exec., Prince Geo's County v. Doe, 300 Md. 445, 454 , 479 A.2d 352 (1984), "when an action is brought in a state court to enforce rights or claims under federal law, the Supremacy Clause of the United States Constitution requires that federal law and policy be applied by the state court." We went on ( id. at 455 , 479 A.2d 352 ): "Moreover ... a state court exercising jurisdiction in a federal cause of action may not refuse to apply federal law in one particular respect where such law is deemed inconsistent with `state policy.' Instead, the entire federal substantive law is applicable.

As the Supreme Court pointed out in Garrett v. Moore-McCormack Co., supra, 317 U.S. [239] at 243, 63 S.Ct. [246] at 249 [ 87 L.Ed. 239 (1942)] where a state court action is brought to enforce `asserted rights granted by federal law,' the state court is `required to give to [the plaintiff] the full benefit of federal law.' (Emphasis added.) The `state court [is] bound to proceed in such manner that all the substantial rights of the parties under controlling federal law would be protected.' Id. at 245 , 63 S.Ct. at 251 , emphasis added." Consequently, if Congress in 42 U.S.C. § 1983 intended that exhaustion of state administrative remedies should not be a prerequisite to bringing an action under that federal statute, regardless of the judicial forum, then the "Maryland policy" concerning invocation and exhaustion of administrative remedies would be immaterial, and the Patsy holding would be fully applicable to state court § 1983 actions. [5] The defendants and amici argue, however, that the congressional intent in § 1983, that state administrative remedies need not be invoked or exhausted, was aimed solely at federal court actions, and that Congress did not have such intent with regard to state court § 1983 actions. They contend that the legislative history and reasoning relied on by the Supreme Court in the Patsy opinion related only to federal court suits under § 1983. In the present case, we need not and do not reach this argument because there was no violation of any applicable state law primary jurisdiction or exhaustion requirement. The defendants and amici suggest that there were three different sets of administrative remedies which Mrs. Crawford was required to invoke and exhaust before bringing an action in court: (1) the remedies afforded by the Maryland-National Capital Park and Planning Commission, including the final decision of the Merit System Board; (2) the remedies available from the federal Equal Employment Opportunity Commission; (3) the remedies available from the Maryland Human Relations Commission. [6] In our view, there was a proper exhaustion of the only administrative remedy which Mrs. Crawford may have been required to follow.

A. The General Assembly of Maryland, in Code (1957, 1983 Repl.Vol.), Art. 28, § 2-112, mandated that the Maryland-National Capital Park and Planning Commission put into effect a merit system for almost all of its employees. The statute created a Merit System Board, set forth certain functions of the Board, and directed the adoption of "a comprehensive plan, a classification plan, and comprehensive rules and regulations governing operation of the merit system for Commission employees." (§ 2-112(c)). The rules and regulations, which were adopted pursuant to the statute, provide a grievance mechanism which culminates in an appeal to the Merit System Board. Merit System Rules and Regulations, Chs. 1700, 1800 (Jan. 1, 1977).

Rule 1860 provides that employees "may appeal the Board's decision to a court of competent jurisdiction." Mrs. Crawford invoked and ultimately exhausted the Commission's administrative grievance system. She filed an administrative grievance on December 15, 1982; she received a response on January 11, 1983; she appealed to the Executive Director on January 17, 1983; and the Executive Director rendered his decision on February 14, 1983. On February 17, 1983, Mrs. Crawford appealed to the Merit System Board, and the Board issued its final decision on April 15, 1983. Meanwhile, as previously mentioned, Mrs. Crawford filed her action in the Circuit Court for Prince George's County on February 10, 1983, before exhausting the Commission's grievance system.

The defendants' argument concerning the alleged failure to exhaust administrative remedies centers upon the filing of the court suit more than two months before the final administrative decision. (Defendants' brief, pp. 14-15). According to the defendants, the circuit court erroneously "assumed jurisdiction of the case by denying the Appellants' Demurrer." ( Id. at 15). An examination of the circuit court's opinion overruling the demurrer demonstrates that the court properly applied any exhaustion requirement in its handling of the case.

First, the court divided the question into two parts: (1) the right of the plaintiff to preserve her ability to prove her case and (2) the right of the plaintiff to go forward with her case. On the first point, the court considered exhibits concerning the rewriting of Commission records. The court enjoined the changing of records or alteration of testimony in orders filed on April 12, 1983. The exhaustion requirement does not apply to an order restraining the destruction or alteration of potential evidence.

A court may exercise jurisdiction and grant preliminary relief pending final administrative action in order to prevent destruction of records or other irreparable injury. See Gulf Oil Corp. v. U.S. Dept. of Energy, 663 F.2d 296, 311-312 (D.C. Cir.1981) (intervening to preserve documents and records from destruction). See also National Bank of Commerce v. Marshall, 628 F.2d 474, 479 (5th Cir.1980), cert. denied, 454 U.S. 1053 , 102 S.Ct. 597 , 70 L.Ed.2d 589 (1981). On the second part, i.e., whether Mrs. Crawford could go forward with her case before exhausting her administrative remedies, the circuit court stated: "The Commission is entitled to have adequate time to answer and investigate the claims and they do assert that there is a dispute about this matter.

Therefore, since this involves a constitutional question, we think it ought not to be decided on a partial record, but on a full record made over a full hearing, everybody having an opportunity to be heard." The court declined to decide the matter on Mrs. Crawford's summary judgment motion, and trial was held more than six weeks after the Merit System Board issued its final decision on April 15, 1983. The only actions which the court took prior to this final administrative decision were filing the orders enjoining the destruction of records and alteration of evidence. Hence the plaintiff reached the exhaustion point contended for by the Commission by the time trial was held. Moreover, where there is doubt about the necessity of exhausting administrative remedies, as in this case, one course of action which has been recognized under some circumstances is for the trial court to require exhaustion while also retaining jurisdiction of the matter.

This avoids the necessity of commencing the civil action over again should the administrative remedy fail to resolve the dispute. For example, in Montgomery v. Rumsfeld, 572 F.2d 250 (9th Cir.1978), the United States Court of Appeals for the Ninth Circuit reversed the trial court's order dismissing an action. The appellate court held that where exhaustion was not a statutory jurisdictional prerequisite, and where case law was in conflict as to the necessity for exhaustion, the trial court could retain jurisdiction pending exhaustion of administrative remedies. 572 F.2d at 252-254 . See Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 792-793 , 506 A.2d 625 ; Offutt v. Montgomery Co. Bd. of Ed., 285 Md. 557, 562 , 404 A.2d 281 (1979).

In addition, in situations like that in the present case, where there is both an administrative remedy and an independent judicial remedy ( i.e., a specific judicial remedy exists other than judicial review of the administrative decision), where the administrative agency may have primary jurisdiction, and where the plaintiff invokes the judicial remedy prior to exhausting the administrative procedures, it has been held that the trial court may retain jurisdiction pending exhaustion of the administrative procedures. Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 792 , 506 A.2d 625 . See the discussion and cases reviewed in Hansen v. Norfolk & Western Ry. Co., 689 F.2d 707 (7th Cir., 1982).

See also Ricci v. Chicago Mercantile Exchange, 409 U.S. 289 , 93 S.Ct. 573 , 34 L.Ed.2d 525 (1973). Once the administrative procedures are exhausted, the trial court may proceed; the plaintiff whose case is meritorious may be entitled to whatever relief is available under either the independent judicial action or the administrative/judicial review remedy. See, e.g., Pan American World Airways v. U.S., 371 U.S. 296 , 313 n. 19, 83 S.Ct. 476 , 486 n. 19, 9 L.Ed.2d 325 (1963); Hewitt-Robins v. Freight-Ways, 371 U.S. 84 , 83 S.Ct. 157 , 9 L.Ed.2d 142 (1962). See also Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 792 , 506 A.2d 625 .

Under the circumstances of this case, the circuit court correctly denied the defendants' demurrer; the administrative remedies afforded by the Maryland-National Capital Park and Planning Commission were fully exhausted. B. We now address the contention that Mrs. Crawford's complaint is really a complaint under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-17, and that she failed to invoke and exhaust the remedies before the federal Equal Employment Opportunity Commission. It is asserted that the E.E.O.C. had primary jurisdiction over Mrs. Crawford's complaint, and that no court could properly exercise jurisdiction over the complaint because of Mrs. Crawford's failure to seek relief from the E.E.O.C. Title VII prohibits various forms of discrimination in employment, 42 U.S.C. §§ 2000e-2-2000e-3. It establishes the E.E.O.C., § 2000e-4, and creates an intricate administrative enforcement scheme, § 2000e-5. [7] In addition, Title VII confers jurisdiction upon the federal courts to entertain actions under that statute, as long as specified administrative procedures have been followed, 42 U.S.C. § 2000e-5(f). [8] It is undisputed that the plaintiff Crawford did not invoke any remedy which she might have had under Title VII.

The coverage of Title VII was extended to state and local government employees by § 2 of the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, § 2 , 86 Stat. 103 , Mar. 24, 1972. Nothing in the statutory language suggests that the 1972 legislation was intended to affect remedies available to state and local government employees under 42 U.S.C. § 1983 . Moreover, the legislative history of the 1972 statute makes it clear that Congress did not intend to affect the right of state and local government employees to bring § 1983 actions. The House of Representatives report on the bill which became the Equal Employment Opportunity Act of 1972 (H.R.Rep.

No. 92-238, reprinted in 1972 U.S. Code Cong. & Adm.News 2137, 2154) stated: "In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual's right to file a civil action in his own behalf, pursuant to the Civil Rights Act of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, is in no way affected. During the floor debate surrounding the passage of Title VII of the Civil Rights Act of 1964, it was made clear that the Act was not intended to preempt existing rights under the National Labor Relations Act or the Railway Labor Act. Title VII was envisioned as an independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress employment discrimination. Two recent court decisions, Young v. International Telephone and Telegraph Co., 438 F.2d 757 , 3 FEP Cases 145 (3rd Cir.1971) and [Sanders] Saunders v. Dobbs House, 431 F.2d 1097 (5th Cir.1970), have affirmed this Committee's belief that the remedies available to the individual under Title VII are co-extensive with the individual's right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981 , and that the two procedures augment each other and are not mutually exclusive.

The bill, therefore, by extending jurisdiction to State and local government employees does not affect existing rights that such individuals have already been granted by previous legislation." Relying upon the above, as well as other legislative history and numerous court decisions, the United States Court of Appeals for the Seventh Circuit recently held that a state government employee could bring a § 1983 action, to remedy a Fourteenth Amendment violation, without invoking Title VII remedies. Trigg v. Fort Wayne Community Schools, 766 F.2d 299 (7th Cir.1985). The court in Trigg stated ( 766 F.2d at 302 ): "From the foregoing discussion, we conclude that the Fourteenth Amendment and Title VII have granted public sector employees independent rights to be free of employment discrimination. A plaintiff may sue her state government employer for violations of the Fourteenth Amendment through § 1983 and escape Title VII's comprehensive remedial scheme, even if the same facts would suggest a violation of Title VII.

This holding is consistent with the great weight of authority. See Day v. Wayne County Board of Auditors, 749 F.2d 1199, 1205 (6th Cir.1984); Meyett v. Coleman, 613 F. Supp. 39 (W.D. Wis. 1985); Storey v. Board of Regents, 600 F. Supp. 838, 840 (W.D.Wis. 1985); Zewde v. Elgin Community College, 601 F. Supp. 1237, 1244-46 (N.D.Ill. 1984); Skadegaard v. Farrell, 578 F. Supp. 1209, 1218 (D.N.J. 1984); Woerner v. Brzeczek, 519 F. Supp. 517, 519 (N.D.Ill. 1981). But see Torres v. Wisconsin Department of Health and Social Services, 592 F. Supp. 922, 929-30 (E.D.Wis. 1984)." See, e.g., Molthan v. Temple University, 778 F.2d 955, 961 (3d Cir.1985); Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir.1985); Alexander v. Chicago Park Dist., 773 F.2d 850, 855-856 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1492 , 89 L.Ed.2d 894 (1986); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir.1984); Nilsen v. City of Moss Point, Miss, 701 F.2d 556, 559 (5th Cir.1983); Rivera v. City of Wichita Falls, 665 F.2d 531 , 534 n. 4 (5th Cir.1982); Owens v. Rush, 654 F.2d 1370 , 1377-1380 (10th Cir.1981); Strama v. City of Chicago, 617 F. Supp. 422, 426 (N.D.Ill. 1985). We agree with the above cases, and hold that the failure to invoke Title VII remedies does not preclude a state or local government employee from maintaining in a Maryland circuit court a § 1983 action based upon an asserted violation of the Equal Protection Clause or other provision of the federal constitution. [9] C. The question whether Mrs. Crawford was required to file a complaint with and exhaust her remedies before the Maryland Commission on Human Relations, before bringing the present action, presents a typical primary jurisdiction issue.

This Court recently summarized the applicable principles as follows ( Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 785-786 , 506 A.2d 625 ): "As Judge Rodowsky recently pointed out for the Court in Wash. Sub. San. Comm'n v. Mitchell & Bell, 303 Md. 544, 561-562 , 495 A.2d 30, 39 (1985), quoting in part from Md.-Nat'l Cap.

P. & P. v. Wash. Nat'l Arena, 282 Md. 588 , 386 A.2d 1216 (1978): `Primary jurisdiction "is a judicially created rule designed to coordinate the allocation of functions between courts and administrative bodies." Maryland Nat'l Capital Park & Planning Comm'n v. Washington Nat'l Arena, supra, 282 Md. at 601 , 386 A.2d at 1225-26 . The doctrine "comes into play when a court and agency have concurrent jurisdiction over the same matter.... and there is no statutory provision to coordinate the work of the court with that of the agency." Id. at 601 , 386 A.2d at 1226 (citation omitted).' "In the situation outlined above, where the General Assembly has provided an administrative remedy and there also exists an independent judicial remedy, and no statute coordinates the two or specifies which is primary, we have ordinarily construed the pertinent enactments to require that the administrative remedy be first invoked and followed. Sec., Dept. of Hum.

Res. v. Wilson, 286 Md. 639, 645 , 409 A.2d 713, 717 (1979); White v. Prince George's County, 282 Md. 641, 649 , 387 A.2d 260, 265 (1978), and cases there cited. On occasion, however, we have held that the administrative remedy is not primary and that resort may be had to the concurrent judicial remedy without invoking or exhausting the administrative procedures. See, e.g., Md.-Nat'l Cap. P. & P. Wash.

Nat'l Arena, supra . "Where, however, the administrative remedy is deemed to be primary, this Court has generally held that it must be pursued and exhausted before a court exercises jurisdiction to decide the controversy." For several reasons, we do not construe the pertinent enactments of the General Assembly as precluding resort by an employee to a specific independent contractual or statutory remedy in court, such as that provided by § 1983, without first invoking the procedures before the Human Relations Commission. The statutory provisions prohibiting discrimination in employment were added to the Human Relations Commission Article of the Code (Art. 49B, then entitled "Interracial Commission") by Ch. 717 of the Acts of 1965. Nothing in the 1965 statute, in the then existing provisions of Art. 49B, or in any subsequent enactments by the General Assembly, remotely indicates that the administrative enforcement machinery in Art. 49B must be invoked prior to pursuing a specific independent judicial remedy.

Moreover, the practical ramifications strongly suggest that the Legislature had no such intent. For example, under the position urged by the amici in this case, where an act of employment discrimination because of race, color, religion, or national origin constitutes a clear breach of an employment contract, the party discriminated against would not be able to maintain a breach of contract action in court unless he had first invoked and exhausted the time consuming and multi-step administrative procedure before the Human Relations Commission. An alleged discriminatory act prohibited by Art. 49B might also constitute a violation of a collective bargaining agreement which contains provisions for arbitration. Under the interpretation advocated by the amici, a party to the collective bargaining agreement arguably would have to invoke and exhaust the Human Relations Commission's procedures before bringing a judicial action to compel arbitration.

Or, if arbitration takes place and culminates in an award, a decision by the Human Relations Commission would arguably be a condition to bringing a statutorily created judicial action to enforce the award. Unlike other situations involving the relationship between independent judicial actions and administrative proceedings ( Cf. Bd. of Ed. for Dorchester Co. v. Hubbard, supra ), we very much doubt that the Legislature intended such results. In Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 787-793 , 506 A.2d 625 , in holding that the State Board of Education had primary jurisdiction to interpret the Education Article of the Code, we distinguished that case from ones such as this as follows ( id. at 790-791 , 506 A.2d 625 ): "While administrative agencies generally may interpret statutes, as well as rule upon other legal issues, and while an agency's interpretation of a statute which it administers is entitled to weight, the paramount role of the State Board of Education in interpreting the public education law sets it apart from most administrative agencies.

On the other hand, where we have held that a concurrent judicial remedy may be pursued without the necessity of invoking and exhausting a statutorily prescribed administrative remedy, the legal issue did not involve an interpretation of a law administered by the agency. See Md.-Nat'l Cap. P. & P. v. Wash. Nat'l Arena, supra, 282 Md. at 600, 386 A.2d 1216 (construction of a contract provision)." In the case at bar, the plaintiff's action does not involve an interpretation of Art. 49B; moreover, it is not grounded upon any provision in Art. 49B.

Instead, while there may be some degree of overlap, Mrs. Crawford's § 1983 action is specifically based upon the Equal Protection Clause of the Fourteenth Amendment. In this regard, the present case is more like Wash. Nat'l Arena than Hubbard . [10] The rule of statutory construction, that ordinarily an administrative remedy must be invoked before resort to an independent judicial remedy, is in part based upon an inference from the comprehensiveness of the statutorily created administrative scheme. As stated in Sec., Dep't of Human Res. v. Wilson, 286 Md. 639, 645 , 409 A.2d 713 (1979), "when the Legislature enacts a comprehensive remedial scheme in which a claim is to be determined by an administrative agency and reviewed in an administrative appeal before judicial review is available, it establishes, as public policy, that such a procedure produces the most efficient and effective results.

In order to effectuate this public policy, trial courts generally should not act until there has been compliance with the statutory comprehensive remedial scheme." (Emphasis added). See, Bd. of Ed. for Dorchester Co. v. Hubbard, supra, 305 Md. at 787 , 506 A.2d 625 . In determining whether this rule of construction should apply to an employee grievance where the employee has a specific independent statutory or contractual remedy for that grievance, it is significant that the remedial scheme before the Human Relations Commission is not as comprehensive as some other administrative remedies. In Gutwein v. Easton Publishing Co., 272 Md. 563, 569-577 , 325 A.2d 740 (1974), cert. denied, 420 U.S. 991 , 95 S.Ct. 1427 , 43 L.Ed.2d 673 (1975), holding that the remedies available from the Commission in an employment discrimination case were somewhat limited, "we note[d] that throughout its 47-year history, the Commission has seen its powers ebb and flow almost as many times as its name has been changed." 272 Md. at 575 , 325 A.2d 740 .

Later, in National Asphalt v. Prince Geo's Co., 292 Md. 75 , 437 A.2d 651 (1981), this Court held that, by enacting the employment discrimination provisions in the Human Relations Commission Article of the Code, the Legislature did not intend to preempt the field. We contrasted the administrative scheme in that Article with other statutory provisions, pointing out that the former was not as "extensive and comprehensive," and that "the matter of employment discrimination is dealt with by five relatively brief sections in Article 49B which do not comprehensively cover the entire field." 292 Md. at 79 , 437 A.2d 651 . The non-exclusive nature of the Human Relations Commission's jurisdiction is illustrated by Equitable Life v. State Comm'n, 290 Md. 333, 336-338 , 430 A.2d 60 (1981), where we held that the Human Relations Commission and the Insurance Commissioner had concurrent jurisdiction over alleged unfair discriminatory practices by insurers, and Equitable Tr. Co. v. State Comm'n, 287 Md. 80, 86 , 411 A.2d 86 (1980), where we reached a similar conclusion with regard to the Human Relations Commission and the Bank Commissioner.

In considering whether an employee, having an independent statutory or contractual cause of action for his or her grievance, must first invoke and exhaust administrative remedies before the Human Relations Commission, it is important to keep in mind that the Legislature has directed in Art. 49B, § 7(b), that private employees and state employees be treated alike with respect to "the rules, procedures, powers, rights and remedies which are applicable in ... a discrimination case...." There are clear indications that the Legislature did not intend that a state employee, having an independent cause of action for a discrimination grievance, must invoke and exhaust the administrative procedures before the Human Relations Commission. When the employment discrimination provisions were enacted as part of Art. 49B of the Code, the Human Relations Commission (then called the Interracial Commission) was not given any jurisdiction over state employees. See Ch. 717 of the Acts of 1965. By Ch. 153 of the Acts of 1969, the Human Relations Commission was given the limited authority to submit a finding to the Governor with regard to a state employee's employment discrimination complaint.

Nevertheless, the Commission was not empowered to provide any remedy; this was the province of the Governor. The Commission's extremely limited authority over state employee complaints continued until after the federal E.E.O.C. was granted jurisdiction over state employee discrimination complaints. As a result of the 1972 amendments to Title VII, making the federal statute applicable to state government employees, the Maryland Human Relations Commission began to seek legislation from the General Assembly "to conform the Maryland law to the 1972 amendments of Title VII of the Federal Civil Rights Act of 1964, so that we do not jeopardize our deferral status and grant privileges with the Equal Employment Opportunity Commission." Annual Report of the Maryland Commission on Human Relations, January, 1973, p. 3. Nevertheless, it was not until the enactment of Ch. 706 of the Acts of 1977 and Ch. 568 of the Acts of 1980, that the Commission was given authority over state employees somewhat equivalent to that of the E.E.O.C. under Title VII, including the authority to award back pay.

The legislative history of the 1980 legislation demonstrates that the purpose was to conform the Commission's jurisdiction to that of the E.E.O.C., so that the state Commission would handle employment discrimination complaints in lieu of the federal agency. [11] In light of this statutory purpose, it is reasonable to infer that the