State of Maryland Commission on Human Relations v. Suburban Hospital, Inc.

DAVIS, Judge. The Maryland Commission on Human Relations (Commission) filed a complaint for injunctive relief pursuant to Maryland Code (1957, 1994 Repl. Vol), Article 49B, § 4. The Commission sought to prohibit appellee Suburban Hospital (Suburban) from voting to revoke the hospital staff privileges of Dr. Carol Bender, and from taking “any further actions to terminate, suspend or restrict” her privileges, until a hearing on the merits of an interlocutory injunction or until the conclusion of administrative proceedings pertaining to Dr. Bender’s charge of unlawful sex discrimination under the Maryland Fair Employment Practices Act (FEPA), Article 49B, §§ 14 et seq.

The administrative charges are currently pending before the State Office of Administrative Hearings. The circuit court denied the request without a hearing by its ⁶⁸ order of February 21, 1996. That same day, the Commission noted its appeal. On appeal, the parties present the following questions for our review: I. Is the issue of the denial of ex parte relief moot?

II

Is review of the interlocutory relief issue moot?

III

Did the circuit court abuse its discretion in refusing to issue an ex parte injunction?

IV

Should the Commission’s request for review of a denial of interlocutory injunctive relief be denied because the circuit court did not rule on a request for interlocutory relief? V. Did the circuit court abuse its discretion in refusing to issue an interlocutory injunction? 1 We answer the first and fourth questions in the affirmative, and the second in the negative. We address the fifth question in order to avoid a second appeal to this Court, and do not reach the third question. Accordingly, we dismiss the appeal.

FACTS Beginning in 1977, Dr. Carol Bender has practiced general internal medicine in Rockville. For most of this period, she has held medical staff privileges at Suburban Hospital, enabling her to admit patients and to provide medical treatment while they are hospitalized. She has also provided coverage for other physicians with privileges at Suburban. As a result of the circumstances surrounding the controversy before us, Dr. Bender no longer holds staff privileges at the hospital.

She still maintains a separate office practice and admitting privileges at Shady Grove Hospital. Suburban follows the unusual practice of encouraging patients and staff at the hospital to complete reports on any negative incident involving a staff member. Reports on a particular individual’s behavior are placed in his or her perma ⁶⁹ nent file. Affidavits submitted to the circuit court reveal that this practice is highly unusual, even unique, among area hospitals.

Dr. Bender has accumulated what no one disputes is a rather thick file of these “incident reports,” dating from 1981. An exhaustive list of the reports is unnecessary here, but most of them concern Dr. Bender’s interpersonal interaction with other doctors, nurses, other medical personnel, and patients, rather than her clinical performance or skills as a physician. Specifically, most of the reports accused her, inter alia, of making rounds in casual attire and bringing her children to work, of engaging in rude, profane, and abusive behavior toward other doctors, nurses, and patients, and of openly criticizing, in an abusive manner, the care provided to her patients by other doctors or staff. Following discussions with hospital administrative personnel about some of these incidents, Dr. Bender accumulated no more reports in her file for three years after 1988.

Three reported incidents in 1991 and 1992, however, provoked the Suburban Hospital Credentials Committee to review her application for reappointment to the active staff of the hospital for the years 1993-94. At the center of the dispute on the merits, aside from the issues central to this appeal, is the motive for Suburban’s actions taken in response to the incident reports. The Credentials Committee, in a meeting held January 28, 1993, voted to require Dr. Bender to undergo a psychiatric evaluation at the hospital’s expense, by a psychiatrist of the hospital’s choice, as a condition precedent to reappointment. Dr. Bender agreed to an examination, and the examining psychiatrist, Dr. William E. Flynn, submitted his report on March 10,1993.

In the report, Dr. Flynn diagnosed no psychiatric illness, but concluded that Dr. Bender was “a person who has not developed a sensitivity to the reactions of her coworkers and therefore does not attempt to control her own responses to frustration.” Dr. Flynn recommended that the Credentials Committee require Dr. Bender to undergo psychotherapy “aimed at insight and behavior change,” at her own expense. A consultant should evaluate Dr. Bender’s progress semi ⁷⁰ annually, and should Dr. Bender refuse treatment or should therapy not produce favorable results, Dr. Flynn concluded, the Credentials Committee should impose sanctions. 2 After a personal interview with Dr. Bender in a special meeting held on April 15, 1993, the Credentials Committee submitted its recommendation to the Executive Committee. It adopted Dr. Flynn’s advice that Dr. Bender should be reappointed provided she undergo behavioral counseling and therapy aimed at improving her interpersonal interactions. Suburban’s Medical Staff Executive Committee adopted the recommendation of the Credentials Committee on May 4,1993.

Dr. Bender refused to undergo the counseling and therapy. Instead, she filed a charge of sex discrimination -with the Commission, claiming the hospital was singling her out because of her gender. The foundation for her allegations consisted of the alleged triviality of the incidents reported, as well as reports of disruptive behavior on the part of male doctors among the staff at Suburban which had gone, Dr. Bender asserted, largely ignored and unpunished. In support of her arguments, Dr. Bender produced' affidavits in the circuit court from several witnesses attesting that several male doctors have been extremely rude and abrasive to patients and staff, have used foul language, and have dressed casually and brought their children to the hospital with them on their rounds, all without serious consequences to the doctors.

One of the affidavits came from one such male doctor. Another affidavit came from a nurse at Suburban. Simultaneously, Dr. Bender sought review of Dr. Flynn’s recommendation through the peer review process contained in the Medical Staff By-Laws for Suburban. Because of scheduling difficulties, the peer review hearings did not begin until January 1994.

The peer review Hearing Committee, after eight days of testimony spaced over seven months, affirmed the recommendation of the Executive Committee on January ⁷¹ 26, 1995, recommending, however, that Dr. Bender merely undergo “behavioral counseling” rather than therapy. In the intervening two years between the Executive Committee’s recommendation (based upon Dr. Flynn’s psychiatric evaluation) and the decision of the Hearing Committee, there were no reports of behavioral problems on the part of Dr. Bender. Based upon this development, the Executive Committee recommended on April 7, 1995 that Dr. Bender be reappointed without the requirement of behavioral counseling, provided that she agreed to release Suburban and everyone associated with Suburban from “any claims she might have, including claims relating to sex discrimination, as [a] result of any events which have transpired to date.” Dr. Bender agreed to this condition at first, but for reasons both unclear and irrelevant, later changed her mind. She informed the Executive Committee, through her attorney, that “as a result of the fact that she has no executed agreement, [Dr. Bender] hereby withdraws her previous settlement offer.” Based on this new position, the Suburban Medical Staff Executive Committee reconsidered its earlier reappointment recommendation.

Finding its earlier recommendation of behavioral counseling “reasonable and appropriate,” it concluded that further efforts by the hospital to resolve the situation would prove unproductive. On May 4, 1995, the Executive Committee recommended, by a vote of twelve to four, that the Board of Trustees not reappoint Dr. Bender to the Medical Staff. An agreement authorizing the Commission to conduct an investigation into the matter forestalled further action, however. It also gave Suburban an opportunity to respond to Dr. Bender’s challenge of sex discrimination, in exchange for Suburban’s agreement to maintain Dr. Bender’s staff privileges until the Commission’s investigation had concluded.

Pursuant to its agreement, the Board of Trustees of Suburban issued a temporary extension of Dr. Bender’s privileges, which would expire on February 29, 1996. On November 15, 1995, after an investigation into the matter, the Commission issued a finding of probable cause that sex discrimination had occurred. In its written findings, the Commission determined ⁷² that male physicians exhibiting similar conduct generally were not disciplined as severely as Dr. Bender; furthermore, those few doctors who had had their privileges suspended or had been required to undergo therapy “appeared to be disposed to possible endangerment to patients and were generally already under psychiatric care prior to any ad hoc / board / credentials committee determination that they be required to do the same.” Stating that several male doctors had engaged in similar conduct with no adverse consequences or even incident reports, and that Suburban admitted that Dr. Bender’s clinical competence was not at issue, the Commission referred the matter to a Commission conciliator pursuant to COMAR 14.03.01.07A. On February 19, 1996, two days before the Board of Trustees was to vote on Dr. Bender’s application for reappointment, the Commission filed a Complaint for Ex Parte and Interlocutory Injunctive Relief in the circuit court, along with a proposed order, which was denied on February 21,1996.

On that day, the Board met as scheduled and denied Dr. Bender’s application for reappointment. As of February 26, 1996, Dr. Bender has not been affiliated with Suburban. Suburban does not pay a salary or a stipend to physicians with voluntary staff privileges, such as Dr. Bender. It does pay such salaries or stipends to hospital physicians holding certain specialties, to physicians holding certain administrative and management positions, to physicians employed by organizations that have contracts to run certain operations (such as the emergency room), and to those physicians whose private medical practices have been purchased by Suburban.

Suburban provides several ancillary benefits to physicians such as Dr. Bender, including facilities with which to care for patients, staff services at the hospital, and various fringe benefits such as seminars, cafeteria discounts, and a physicians’ lounge. Suburban does not pay social security taxes for Dr. Bender, and she is not covered under Suburban’s malpractice insurance. Suburban does not pay Dr. Bender’s licensing fees, professional dues or taxes. It does require that physicians who wish to take a leave of absence from their duties submit a ⁷³ request for leave to Suburban.

In addition, physicians must notify Suburban if they have an illness that will cause at least a month’s absence. Physicians must also conform with Suburban’s general record-keeping and reporting requirements. In addition, physicians on the “active” staff must attend fifty percent of the combined number of meetings held by the Medical Staff, department, subsection, and committee to which the physician is assigned. Active staff physicians must also satisfy ancillary activity requirements determined by the Medical Staff Executive Committee.

Suburban’s by-laws specify that a physician may request placement on an on-call roster to care for emergency patients or interpret test results. Suburban exercises the right to control placement on, or removal from, the on-call roster. Suburban also runs a physician referral service. Patients are referred to physicians on Suburban’s medical staff for treatment, and, if necessary, that physician may admit them to Suburban for treatment.

Suburban does not supervise the care given to these or any other patients under the care of a voluntary staff physician, although it reserves the right to prohibit certain treatment deemed “medically unacceptable” by Suburban. In an affidavit submitted in the circuit court, however, Dr. Bender claimed that “on occasion,” she has been removed from patient care by her “supervisors” in response to a request by another physician, without regard to the patient’s wishes. Dr. Bender also has agreements with three other physicians under which she “covers” for them at the hospital when they are unable to care for their patients. Her coverage physicians participate in Preferred Provider Organizations (PPO’s) which require them to have privileges at Suburban.

DISCUSSION A I Suburban argues that the issues raised by the Commission are moot and that we should therefore dismiss the ⁷⁴ appeal. Suburban cites National Collegiate Athletic Ass’n v. Tucker, 300 Md. 156 , 476 A.2d 1160 (1984), and General Motors Corp. v. Koscielski, 80 Md.App. 453 , 564 A.2d 114 (1989), for the proposition that an appeal of a denial of an injunction is moot when the act sought to be enjoined has already occurred. Tucker, 300 Md. at 159 , 476 A.2d 1160 ; Koscielski, 80 Md.App. at 457 , 564 A.2d 114 . The Commission, argues Suburban, sought to enjoin the Board of Trustees from voting to deny Dr. Bender’s application for reappointment.

Because the denial of the injunction enabled the Board to act, Suburban concludes, and because the Board has already acted to deny Dr. Bender’s application, there is nothing for us to enjoin and we should dismiss the appeal. We disagree on two levels. First, Suburban’s reliance on Tucker and Koscielski is misplaced. As the Court of Appeals recently reiterated in Insurance Comm’r v. Equitable Life Assurance Soc’y of the United States, 339 Md. 596 , 664 A.2d 862 (1995): “‘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.’ ” Id. at 613 , 664 A.2d 862 (quoting Att’y General v. Anne Arundel County School Bus Contractors Ass’n, 286 Md. 324, 327 , 407 A.2d 749 (1979)).

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 enter would be without effect.’” Md. Comm’n on Human Relations v. Downey Communs., Inc., 110 Md.App. 493, 512 , 678 A.2d 55 (1996) (quoting Hayman v. St. Martin’s Evangelical Lutheran Church, 227 Md. 338, 343 , 176 A.2d 772 (1962)). The usual result of an appeal deemed moot is dismissal. Downey Communs., 110 Md.App. at 513 , 678 A.2d 55 . In Tucker , the NCAA had appealed the circuit court’s grant of an injunction prohibiting the NCAA and Johns Hopkins University from barring two lacrosse players from playing in the final two games of the season.

By the time the appeal was ⁷⁵ heard, the games were over and the athletes had played. In dismissing the appeal, the Court of Appeals noted: In the instant appeal, a controversy no longer exists over whether the appellees will be allowed to play lacrosse for the remainder of the season because, simply put, the season is over. Accordingly, because the only question before us is the appropriateness of the issuance of the interlocutory injunction, we hold that the appeal is moot. Tucker, 300 Md. at 159 , 476 A.2d 1160 .

In Koscielski , we were faced with a somewhat different situation. In that case, we declared moot a request to stay a circuit court’s order for payment of attorney’s fees to Koscielski’s attorney in a workers’ compensation case, because payment had already been made prior to our hearing the case. Relying on the particular language of the court’s order, that “Lt]he monies deposited in the circuit court by the appellant ... be paid to [appellant’s attorney] at 2 p.m. on Wednesday, January 25, 1989 ....”, we noted that the “sum has been paid to appellee’s counsel and, thus, the actual payment to and receipt by appellee’s counsel is a matter which the courts can no longer control.” Koscielski, 80 Md.App. at 457 , 564 A.2d 114 . In response to the Commission’s argument that we should reverse the effects of the Board’s vote pending the outcome of the administrative hearing, Suburban argues that this would accomplish nothing.

To support this assertion, Suburban relies on the following dicta from our opinion in Koscielski : While it is arguable that we could order the return of the fee to the Clerk of the Court pending trial on the merits of the disputed attorney’s fees, the posture of the case and common sense [dictate] otherwise. If the appellee prevails, the monies would then, for a second time, be paid to her attorney. Id. at 458 , 564 A.2d 114 . Because the Board’s vote has occurred, says Suburban, and because reinstatement is a remedy to which Dr. Bender may be entitled should she ⁷⁶ prevail on the merits of her discrimination claim, common sense dictates the dismissal of the appeal.

We disagree. Injunctive relief is an equitable remedy, see Fox v. Ewers, 195 Md. 650, 657 , 75 A.2d 357 (1950), and is governed, as is all equitable relief, by basic notions of fairness. We relied in Koscielski on the “posture of the case and common sense” in declining to order the return of the fee to the Clerk of the Court, pending trial on the merits of the disputed attorney’s fees. Koscielski, 80 Md.App. at 458 , 564 A.2d 114 .

First, the posture of that case is that it was an appeal for a stay of an order already executed. There was nothing to stay. Moreover, we think it significant that in that case, the relief sought would be of minimal benefit to the appellant himself. Had we ordered the return of the money, the appellant would have received nothing.

The only effect would have been the return of the money to the Clerk of the Circuit Court, soon to be paid either to the appellant or to his attorney. Such a purely ministerial act would have been meaningless. Put another way, granting the stay at issue in Koscielski would not have been an “effective remedy” of the sort contemplated by Anne Arundel County School Bus; it would not have relieved any hardship personal to appellant, who, in either event, would remain without the money until the conclusion of the trial. Koscielski , however, is distinguishable from the case sub judice in that temporary reinstatement of Dr. Bender’s privileges at Suburban, pending the outcome of her administrative hearing, would gamer benefits of tremendous pecuniary and nonpecuniary value for her.

She would be able to admit her patients to the hospital for treatment, thus stemming the attrition of patients and the rapid loss of income that the Commission alleges is occurring. 3 “It has long been ⁷⁷ established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.” Porter v. Lee, 328 U.S. 246, 251 , 66 S.Ct. 1096, 1099 , 90 L.Ed. 1199 (1946). The status quo to be preserved by a preliminary injunction is “the last, actual, peaceable, noncontested status which preceded the pending controversy.” State Dep’t of Health & Mental Hygiene v. Baltimore County, 281 Md. 548 , 556 n. 9, 383 A.2d 51 (1977) (quoting 43 C.J.S. Injunctions § 17 (1945)). The last noncontested status of Dr. Bender was as a physician with staff privileges at Suburban. Moreover, temporarily reversing the Board’s action would be perfectly consistent with the purpose of the General Assembly in enacting Article 49B, § 4.

Section 4 was enacted substantially to eliminate the need for damages for lost wages “by authorizing instead interlocutory injunctive relief in order that the status of the parties be preserved pending a determination on the merits.” State Comm’n on Human Relations v. Amecon Div. of Litton Systems, Inc., 278 Md. 120, 125 , 360 A.2d 1 (1976) (emphasis added). Were we to grant the injunction, we would be preserving the status of the parties until the administrative hearings conclude. Thus, the case still presents a live controversy for which a court could fashion an effective remedy. Downey Communs., 110 Md.App. at 513-14 , 678 A.2d 55 .

Therefore, we hold that the appeal concerning an interlocutory injunction is not moot. We believe, however, that under Koscielski , the appeal from the denial of an ex parte injunction is moot. The Commission asked the circuit court for an ex parte injunction pending a hearing on the propriety of an interlocutory injunction to remain in effect until the resolution of the administrative proceedings. Maryland Rule BB72 governs the issuance of ex parte injunctions: ⁷⁸ a.

When May Be Granted Any ex parte injunction shall not be granted unless it appears from specific facts ... that immediate, substantial and irreparable injury will result to the applicant before an adversary hearing may be had. Approximately ten months have passed since the denial of Dr. Bender’s application for reappointment. We think it fairly obvious that no damage would result, which has not resulted already, from requiring Dr. Bender to wait the relatively short time it would take to hold a hearing on the merits of a complaint for an interlocutory injunction. In short, to grant an ex parte injunction until such time as a hearing for an interlocutory injunction may be held, at this late date, would run contrary to “the posture of the case and common sense.” Koscielski, 80 Md.App. at 458 , 564 A.2d 114 .

Frankly, any injury so immediate as to justify the issuance of an ex parte injunction at the time of the circuit court’s denial has already occurred, or was never a threat in the first place. An adversary hearing could have taken place many months ago. Therefore, we can offer no effective remedy by considering the propriety of the denial, and this issue is moot. On appeal, therefore, we will only consider the request for an interlocutory injunction.

II We turn now to the question of the interlocutory injunction. Suburban argues that the circuit court denied only the request for an ex parte injunction; the denial did not extend to a request for interlocutory injunctive relief. We agree. Our opinion in Downey Communs. provides ample support for this conclusion.

In that case, as here, the Commission sought both ex parte and interlocutory injunctive relief. Downey Communs., 110 Md.App. at 518 , 678 A.2d 55 . The circuit court in Downey Communs. stated explicitly in its order that it considered “Plaintiffs Petition for Ex Parte[,] Interlocutory[,] and ⁷⁹ Permanent Injunctive Relief.” Despite this explicit reference, we found that the court’s order only denied ex parte relief. Id.

We will first address two differences between that case and the case sub judice, which may at first blush appear to support the Commission’s argument that the circuit court ruled on a request for interlocutory injunctive relief. In Downey Communs., the language of the court’s order specified that “because [the court] was ‘not ... satisfied that the burden has been shown,’ ‘Plaintiffs ex parte petition is DENIED.’ (Italics added; capitalization in original).” Id. In addition, the docket entries in that case stated that an order denying the appellant’s “ex parte petition” was filed. This specific language in the court’s order and the docket entries provided support for the conclusion that the circuit court meant only to deny the request for an ex parte injunction.

In the case sub judice, the docket entry does state that the order of the court “denying” the complaint for ex parte injunction and interlocutory relief was filed. The court did not issue its own written order, however, but adopted the Commission’s proposed order. There is no positive language of the court such as existed in Downey Communs. Nevertheless, two other factors convince us that the court denied only a motion for ex parte injunctive relief.

First, as stated supra, the court merely scrawled “Denied” on the copy of the proposed order submitted by the Commission. This proposed order reads: Plaintiffs Complaint for Ex Parte and Interlocutory Injunctive Relief, having come before this Court, and having considered Plaintiffs Complaint and Defendant’s [sic] Opposition thereto, It is hereby ORDERED, this 20th day of February, 1996 A. A temporary injunction is issued, effective immediately, enjoining the Defendent [sic] from taking any action to terminate, suspend or restrict Plaintiffs reappointment to the Hospital, or her staff privileges, and requiring the defendent to maintain the status quo; ⁸⁰ B. That this injunction shall remain in effect until _ or until such time as the Court holds an evidentiary hearing on this matter and has had an opportunity to rule or until the completion of administrative proceedings before the Office of Administrative Hearings. We note first that the words “Plaintiffs Complaint for Ex Parte and Interlocutory Injunctive Relief,” found at the top of the order, are not dispositive. In Downey Communs., the order written by the court contained the same title, yet we found that the court only ruled on the ex parte request.

Downey Communs., 110 Md.App. at 518 , 678 A.2d 55 . Most important, however, we look at the language of the document itself. Court orders are construed in the same manner as other written documents. Id.; Hosain v. Malik, 108 Md.App. 284, 310-11 , 671 A.2d 988 (1996). 4 The requested time frame for the injunction, in paragraph B, specifies a blank date, a short time until an interlocutory hearing, or, in the alternative, a time stretching until the completion of administrative proceedings.

This request can only relate to an ex. parte injunction. The blank date is a nullity. The request for an injunction to take effect “until such time as the Court holds an evidentiary hearing on the matter and has had a chance to rule” is self-explanatory, and is obviously a request for an ex parte injunction. Furthermore, the last alternative is to extend the injunction until the completion of the administrative proceedings.

This last alternative, by its very terms, contemplates no hearing. No injunction other than an ex parte injunction can issue without notice and an opportunity for the adverse party to be heard on the propriety of the injunction. See Md. Rule BB74 (1996). The Commission was asking the circuit court to grant an interlocutory injunction without a hearing, which it could never do.

Thus, the injunction which the proposed order grants, and upon which the court wrote its denial, contained, by its own ⁸¹ terms, a grant only of an ex parte injunction. Furthermore, as we noted in Downey Communs.: 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.

Downey Communs., 110 Md.App. at 518 , 678 A.2d 55 (emphasis added). In this case, no adversary hearing was ever conducted — not even a chambers conference — and no proceedings took place at which evidence was introduced. Moreover, the date on the proposed order was February 20th, 1996 — one day after the proposed order was submitted to the circuit court. Clearly, the Commission did not contemplate a hearing when it submitted its order, but an emergency, ex parte injunction, pending a hearing or, if one were never held, pending the outcome of the administrative proceeding.

Thus, the court denied a request only for ex parte injunctive relief. It never ruled on a request for interlocutory injunctive relief, and we must dismiss this appeal as premature. B Our analysis, supra, does not dispose of this case, however. The result of our dismissal of the appeal regarding the Complaint for Interlocutory Injunctive Relief would logically be a hearing on the merits of such relief in the circuit court.

If the court failed to grant an interlocutory injunction mandating temporary reinstatement of Dr. Bender’s staff privileges at Suburban, then the Commission may appeal to this Court again, and its argument would necessarily have to be that the circuit court abused its discretion in failing to grant an interlocutory injunction. 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) (the exercise of ⁸² discretion by the trial court when it denies an injunction will not be disturbed on appeal absent a showing that discretion has been abused). This would put us in the same position as we are in today. Thus, in order to spare all concerned the expense and delay of another appeal, Md. Rule 8-131(a) (1996), we will address the Commission’s main contention (modified in light of the posture of the case): whether the circuit court could have granted an interlocutory injunction under the facts presented by the Commission.

In short, we must decide, as a matter of law, whether the circuit court could exercise its discretion in favor of the Commission, and mandate the temporary reinstatement of 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____ ⁸³ (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 ⁸⁴ servants.”). 5 Agents who. are not employees are independent contractors. Id.; Brady v. Ralph Parsons Co., 308 Md. 486, 510 , 520 A.2d 717 (1987). 6 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 existence of an agency relationship which has guided our analysis in subsequent cases: There are three elements that are integral to an agency relationship: (1) The agent is subject to the principal’s right of control; (2) the agent has a duty to act primarily for the benefit of the principal; and (3) the agent holds a power to alter, the legal relations of the principal.

Id. at 687 , 487 A.2d 1240 (citing Restatement (Second) of Agency §§ 12-14 (1958)); Patten, 107 Md.App. at 238 , 667 A.2d 940 ; Mercedes-Benz of N. Am. v. Garten, 94 Md.App. 547, 557 , 618 A.2d 233 (1993); Homa v. Friendly Mobile Manor, 93 Md.App. 337, 360 , 612 A.2d 322 (1992), appeal dismissed without op., 330 Md. 318 , 624 A.2d 490 (1993); Cottman Transmissions, 86 Md.App. at 732 , 587 A.2d 1190 . After finding that an agency relationship exists, a court then applies five criteria to determine whether the relationship is that of an employer and employee. Whitehead, 304 Md. at 77 , 497 A.2d 803 . These are: (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of the regular business of the employer.

Id. at 77-78 , 497 A.2d 803 . The key factor, with conclusive significance, is the power or right ⁸⁵ of control. Id. at 78 , 497 A.2d 803 ; Chevron, U.S.A., Inc. v. Lesch, 319 Md. 25, 32 , 570 A.2d 840 (1990); Brady, 308 Md. at 510 n. 25, 520 A.2d 717 ; Imbraguglio v. Great Atl. & Pac. Tea Co., 108 Md.App. 151, 160 , 671 A.2d 72 , cert. granted, 342 Md. 507 , 677 A.2d 583 (1996); Travelers Indem.

Co. v. Insurance Co. of North America, 69 Md.App. 664, 675 , 519 A.2d 760 (1987). If the right of control is not present, and the worker is free to perform the work “according to his own means and methods free from control of his employer in all details connected with the performance of the work except as to its product or result,” then the worker is an independent contractor. Baker, Watts & Co. v. Miles & Stockbridge, 95 Md.App. 145, 180 , 620 A.2d 356 (1993) (quoting Williams Constr. Co. v. Bohlen, 189 Md. 576, 580 , 56 A.2d 694 (1948)). 7 That is the Maryland common law approach to agency and employment relationships, which Suburban urges us to adopt in light of the United States Supreme Court’s decision in Nationwide Mut.

Ins. Co. v. Darden, 503 U.S. 318 , 112 S.Ct. 1344 , 117 L.Ed.2d 581 (1992). In that case, the Court, noting the lack of any legislative guidance as to the meaning of the term “employee” under the Employee Retirement Income Security Act of 1974 (ERISA), 8 resorted to traditional agency law principles to divine the meaning of the term. 9 We view ⁸⁶ this approach as inapposite to the analysis of the meaning of “employee” under Article 49B, and we decline to adopt it. First, we note that the Court rejected a broader reading of the term “employee” because Darden and the United States (as amicus curiae) attempted to apply a definition of the term drawn from the Fair Labor Standards Act, which defined the verb “employ” to include “suffer or permit to work.” “The textual asymmetry between the two statutes,” the Court said, prevented this approach.

Id. at 326 , 112 S.Ct. at 1350 . The Commission attempts no such application in this case, but relies for its argument solely on the remedial nature of FEPA and federal case law interpreting Title VII of the Civil Rights Act. Second, although we note the similarity of the definitions of “employee” in ERISA and FEPA, we see no reason to adopt the Supreme Court’s direction based solely on this. More compelling, we believe, is the practice of Maryland courts to look to federal case law and legislative history relating to Title VII in order to interpret FEPA, in light of the identity of language between many sections of the two acts, including the sections at issue in the case sub judice.

Molesworth v. Brandon, 341 Md. 621, 633 , 672 A.2d 608 (1996) (Article 49B was modeled on Title VII, and has been altered to conform to the federal act); Brandon v. Molesworth, 104 Md.App. 167 , 186 n. 16, 655 A.2d 1292 (1995). We shall do the same. In light of its specific reasons for rejecting a broad definition of “employee” under ERISA, the Supreme Court’s approach in Darden does not vitiate its own earlier pronouncement that the common law “right to control” test was too rigid to serve as a useful tool in deciding employee status in cases arising under remedial social legislation. Bartels v. Birming ⁸⁷ ham, 332 U.S. 126, 130 , 67 S.Ct. 1547, 1550 , 91 L.Ed. 1947 (1947) (“Obviously control is characteristically associated with the employer-employee relationship, but in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service.”).

Following the lead of Bartels , most federal circuits, including the Fourth Circuit, have recognized that in enacting Title VII, Congress “sought to eliminate a pervasive, objectionable history of denying or limiting one’s livelihood simply because of one’s race, color, sex, religion or national origin.” Haavistola v. Community Fire Co., 6 F.3d 211 , 221 (4th Cir.1993) (quoted source omitted). Consequently, these circuits have applied a test under Title VII that finds a place for the notion that the “economic realities” of the workplace should play a significant part in determining whether someone is an “employee” for purposes of Title VII. Id; e.g., Diggs v. Harris Hospital-Methodist, 847 F.2d 270, 272 (5th Cir.1988); Garrett v. Phillips Mills, Inc., 721 F.2d 979, 981 (4th Cir.1983); Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C.Cir.1979). Most circuits, however, have not adopted the “pure” economic realities test, an