*1 A.2d STERLING Gail v. CORPORATION.

ATLANTIC AUTOMOTIVE 105, Sept. Term, 2006. No. Maryland. Appeals of

Court of 4, 2007. June *2 (Adam Carter, R. Oswald Augustine Employment Scott P.C., DC, brief), Law Group, Washington, petition- on er/cross-respondent. Dallahan-McLauchlin, F. (Tracey Ballew

Craig Ferguson, Ballew, P.A., Baltimore, brief), Schetelich & on for respon- deni/cross-petitioner. Counsel, Parikh,

Glendora Hughes, C. General N. Anand Counsel, Asst. General Com’n on Human Rights, amicus curiae. BELL, C.J., RAKER, CATHELL,

Argued before HARRELL, BATTAGLIA, GREENE and M. ALAN WILNER, (Retired, Specially Assigned), JJ.

GREENE, J. This matter arises from a sexual harassment claim filed (“Ms. Sterling Sterling”) Gail against her Atlantic employer, (“Atlantic”). Corporation Automotive The main issue with which we are concerned is Sterling whether Ms. filed certiorari, matter, for writ in timely a in accordance with Maryland Rule 8-302. We shall Sterling’s hold untimely because she filed it 19 days after intermediate appellate court issued its mandate. Pursuant for writ of certiorari be no may filed later than 15 Court Appeals issues mandate.

FACTUAL AND PROCEDURAL BACKGROUND Ms. Sterling against Atlantic, filed a civil suit her former employer, types two workplace sexual harassment and for retaliation. The Circuit Court for Montgomery County in favor of Ms. jury found in her favor. A judgment entered harassment claim, sexual employer’s on her that her environment, compensato- and awarded a hostile work created $195,000. judge The trial denied in the amount of ry damages damages jury’s post-trial remitting motions after Atlantic’s $100,000. judge The trial also awarded award $46,437 in attorney’s fees and $304,063 in witness and expert costs. Ap of Special timely appeal

Atlantic concerning cross-appeal filed a peals and Ms. The of fees. intermediate of the trial court’s award extent September on an unreported court filed nine claims were of Atlantic’s eight 2006. It determined issue, the court ruled remaining merit. As to the without as to the jury improperly had instructed judge trial proof, in hostile work environ parties’ respective burdens action, Circuit judgment ment and therefore vacated *3 intermedi the case for a new trial. The Court and remanded 11, 2006. court its mandate on October ate issued for of certiorari with the petition filed a writ 2, 30, Court, 2006.1 On November of on October Clerk this petition 2006, Sterling’s Atlantic a motion dismiss Ms. and, 13, 2006, filed a untimely, on November conditional as Sterling presented following questions petition the in her for writ 1. Ms. of certiorari: timely? petition Is the for writ 1. of certiorari Whether, Maryland, employ- 2. under Article 49B of the Code of prove work sexual harassment must ee-victim of hostile environment imputed employer, or supervisor the of a is to the conduct harmony Maryland Courts 49B Title VII in whether read Article and impose employers, as and thus an affirmative defense burden on Raton, City required by Supreme Faragher Boca 524 the Court v. of 2275, 775, (1998), Burlington 118 141 L.Ed.2d 662 and U.S. S.Ct. 2257, Industries, 742, Ellerth, v. U.S. 118 S.Ct. 141 L.Ed.2d Inc. 524 (1998)? any may been the Circuit 3. Whether error that have committed Faragh- jury using Supreme Court when it instructed the the Court’s error, employer liability affirmative was harmless defense er/EUerth person responsible at for the since was admitted trial co-worker, but rather was hostile work environment was a mere supervisor? the victim’s for of cross-petition 14, 2006, writ certiorari.2 On December granted both petition Court and conditional cross- parties and ordered that brief question both of the Auto, petition. v. Atlantic of timeliness 396 Md. (2006). 912 A.2d 648

DISCUSSION holding Because our that Ms. Sterling failed to file timely certiorari, for writ we will only address those arguments pertaining to that issue.

Ms. Sterling argues that her timely. must, She acknowledges, as she that the issued mandate on October and date of issuance was 2006. however, argues, that she was entitled to three (October 29) 27, 28, extra days and because of the extension l-203(c), provided which states: presented following questions 2. Atlantic in its conditional cross- petition: A. Faragher/EUerth If Court determines that standard should be utilized to define the elements of a hostile work environment claim: company’s 1. Whether a policy distribution of an anti-harassment availability higher management and the complaints to receive prong Faragher/EUerth satisfies first affirmative defense. employer required 2. Whether an prong to establish the second Faragher/EUerth where affirmative defense it establishes that it action, prompt took remedial stopped. the sexual harassment employer 3. Whether an can establish second element of the Faragher/EUerth by demonstrating affirmative plain- defense that the *4 advantage preventive tiff did not take procedures of and corrective before the pervasive. harassment became severe or B. the Manikhi/Magee If Court determines that the standard be should utilized to define the elements of a hostile work environ- claim, plaintiff prevail ment whether a can under where this standard stops complains. the harassment after she C. acquired precludes Whether the after evidence doctrine recovery compensatory damages of in a hostile work environment sexual action. harassment D. required Whether the courts were provi- below enforce parties' evidentiary stipulation. sions of the is to do some right required or a has the party Whenever a prescribed period within or some proceeding act take and paper or service of a notice other party mail, prescribed to the three shall be added is made by period. a where applies that this rule cases

Ms. contends not parties mail and the do a notice or order court sends the facts opinion, more notice—in any expedient receive sub that, in the case Sterling argues case. Ms. the instant fits its mandate judice, in which the court issued manner mandate fits ordinary of “service” and the within the definition other ordinary paper,” of “notice or such within the definition 203(c)applies. 1— addition, was argues she entitled In (October 30) to file her day additional l-203(a), which states: because act, event, (a) or default. Computation of time after an rules, these computing period prescribed by of time any statute, court, by any applicable order of or rule or act, event, designated or after which the of the default day period is not included. If the begins of time to run period days, than seven intermediate of time allowed is more counted; are but if the Saturdays, holidays and Sundays, less, seven or intermediate period time allowed is are not counted. The last Saturdays, Sundays, holidays of the so is included unless: day period computed (1) or in which event the Saturday, Sunday, holiday, it is a a day next is not period runs until the end Saturday, or or Sunday, holiday; (2) in court and paper the act be done is the a day of the clerk of that court on the last the office open, part day, not or closed for a period is day runs until the end of the next which event Saturday, Sunday, day on which holiday, that is not hours. open during regular the office is 2006 was contends that because open, office therefore not she Sunday, and Clerk’s *5 timely in a filed manner when she filed it on 30, Monday, day October the next that the was open. office According Sterling, to Ms. of 8-302 language Rule dispositive. provision also That in provides, pertinent part:

(a) appeal From to Appeals. Court of If a of to appeal notice of has Special Appeals Court been to pursuant Rule a writ petition for of may be filed either before Court decision, has Special Appeals rendered but not later than after the Court of its issues man- date.

Ms. asserts that the definition ordinary word “issue,” to Dictionary, Black’s Law according means send “[t]o officially definition, out ... deliver.” Drawing this Sterling argues the word “issue” is synonymous with therefore, the word “service” and the Court intended that 1-203(c) apply Rule should for writ of certiorari. Sterling explains Mrs. that other rules use the “entry” word 1-203(c) apply, and that the Court did not want Rule then it would have entry, 8-302(a), used word instead in issue entry synonymous because is not with service. points also out that specifically

states that “Title 1 to all applies matters all State, except courts the Orphans’ except Courts and as specifically provided,” otherwise thus compelling applica l-203(c) tion Rule Lastly, to this case. Ms. Sterling avers 03(c) that fairness 1-2 compels application of Rule to this respondent case not because should have more time which an opposition to file to a certiorari than a petitioner had to file the petition.

Atlantic counters Ms. Sterling’s untimely because she 19 days filed it of Special Appeals Court mandate, day issued violation of the 15 strict deadline 8-302(a). imposed by that, explains case, Atlantic in this of Special Appeals issued its mandate on October 11, 2006, 2006, making day the 15 deadline October and not 2006. does Atlantic avers further mail, not to an applies only apply because v. Bros. Atlantic cites Kamara Edison court. entry by 333, 337-38, Stores, Inc., 765 A.2d Md.App. Apparel *6 1-203(c) (2001), applies only that Rule proposition for the 1007 clock, and not to triggering is a prerequisite when service clock, something triggers else in other instances when according that to points if Atlantic out mail is used. even 8-302, triggers the issuance the mandate Maryland Rule Rule does not mention Maryland that 8-302 the clock and rule, Atlan In with this “service” of the mandate. accordance 2006, on argues, triggered tic the clock was October mandate, its and Special Appeals the Court of issued date that therefore, Sterling’s petition for the deadline Ms.

26, 2006.

Furthermore, Sterling’s policy that Ms. argues Atlantic explains are Atlantic that Ms. Ster- arguments unpersuasive. to file for writ of ling ample time which her had opin- its certiorari because the Court of on which the court’s decision September ion contained Atlantic, Sterling days had 36 According and rationale. Ms. time filed its appellate between the that intermediate court mandate, that it its in addition to opinion and the date issued mandate, file prepare petition. the 15 after the and days Sterling Ms. was unable to Atlantic notes further while her, days file her in the 51 allotted to Atlantic was able to its Answer and Conditional Cross-Petition for prepare days within the 15 the rules. permitted by Certiorari argument also that she Sterling’s Atlantic discounts Ms. upon could not know the date intermediate court its until the mandate at her issued mandate arrived points Maryland office mail. Atlantic out that attorney’s 8-606(b) provides Rule that the Clerk shall issue the mandate expiration of 30 of the Court’s order. entry of the Court’s Because after it filed its mandate its Appeals issued actually Ms. had additional six opinion, that, as time file her Atlantic states preparation petition. result, ample received notice of when the man- date would be issued and when her petition would be due. 8-303(d) Atlantic

Lastly, points Maryland out Rule explains that an a petition answer to for writ of certiorari after service of the must within petition. be filed view, intended, Atlantic’s demonstrates the Court in its adoption the clock to be triggered mandate, of the such certainly service had at language Instead, recommendation, its disposal. the Rules Committee’s rule, and the adoption explicitly stated that the clock triggered by the issuance of the mandate. with

We Atlantic that agree 8-302 allows days, after the date of the issuance of the mandate, Court of Special Appeals’s which to file her of certiorari. does apply for writ certiorari because the clock is mandate, triggered by the issuance of the not by *7 by mail. also agree We with Atlantic that Ms. Sterling had decision, notice of the intermediate appellate court’s notice as mandate, and, therefore, to when it would issue its ample time in petition which to file her for writ of certiorari. Accordingly, petition we shall dismiss Ms. Sterling’s for writ of certiorari as untimely.

Time Limitations a Petition Filing for Writ Certiorari

for of (1974, § 2006 Repl.Vol.), Md.Code 12-201 of the Courts and Article, Judicial Proceedings entitled “Certiorari to Court of Special Appeals” provides:

Except provided subtitle, § as in 12-202 in any of this case or proceeding pending or decided the Court of Special Appeals appeal from a circuit or orphans’ court an Court, court or the Maryland Tax any party, including the State, file in may Appeals petition the Court a for The petition certiorari review or proceeding. the case may be either or the Court Special filed before after decision, Appeals has rendered a but not later than the time prescribed by Maryland the Rules. In a case or section, of Appeals the Court described proceeding own on its motion. may issue the writ of certiorari also added.) prescribed by To examine time (Emphasis Rules, is entitled turn to Rule we first Maryland The for text of filing.” for of certiorari —Times “Petition writ by mirroring language Maryland begins Rule 8-302 (1974, § 12-201 of the Courts and Repl.Vol.), Md.Code petition “a It reiterates that Proceedings Article. Judicial or after the may be either before writ of certiorari ” It has a decision.... then rendered §in 12-201 applicable time referenced prescribes It Proceedings Article. states of the Courts and Judicial be filed may a for writ certiorari explicitly that decision, “but Special Appeals’s or after the Court of before Appeals not later than 15 after The of this rule is clear—the language its mandate.” issues within 15 after the issuance of the must be filed therefore conclude mandate. We arrives office after fifteenth

of certiorari the Clerk’s timely day, then filed.3 applies contends that copy case because she received mandate instant l-203(c), disagree. the mail.4 entitled “Addition-

via We l-203(a) day provides exception to this dead 3. If are unable to file documents with the Clerk’s office line. individuals closed, gives until the end of because the office is the Rule individuals Sunday holiday day Saturday, next after the deadline that is not petition. agree to file the document or We with Ms. that Rule 1-203(a) day applies if the for writ fifteenth however, holiday. agree, or a We do not that Rule falls on weekend day applies because the fifteenth instant case *8 26, issuance, 2006, Thursday, Saturday, a and not a was Sunday, holiday, when Clerk's w as or other occasion office closed. support 4. relies on two cases to her contentions. She cites T00130003,T00130004, 250, Adoption/Guardianship 370 Md. In re Nos. Cleaners, (2002), Donegal v. A.2d Wholesale Inc. 805 254 First Co., 24, (2002). Md.App. 792 A.2d 325 In re Mutual Insurance 257-58, Adoption/Guardianship, 370 at Md. at A.2d involved parental were rights. Show cause orders served on the termination by mail,” al time after service states explicitly that “[w]hen- ever a party has the right is required do some act ... within a prescribed period upon service party notice or mail, other paper and service is made by days three shall l-203(c) be added to the prescribed period.” Rule is inapplicable for (cid:127)writ of certiorari because it refers prescribed to a period after upon service a party, specifically by service made mail. While Ms. Sterling received a copy mail, by mandate is not service a requirement associated with the issuance of a states, mandate. As Rule 8-302 issues Court of Special Appeals mandate, it is not required to serve upon mandate the parties as a prerequisite issuance or effective date.

Kamara, 136 Md.App. at 765 A.2d at is instructive on point entry because of a judgment analogous mandate, to the issuance of a despite the fact that Ms. Sterling argues that “entry” is much more than stringent Kamara, “issue.” the intermediate appellate court was asked to determine whether the trial court erred striking the notice of an appeal on the grounds that untimely was children, the two through Legal attorney, their Aid to inform them that they object guardianship wished to to the change, they had 30 so, which to do days provided addition to an extra three for Rule l-203(c). support This case does not Sterling's contentions be- document; required cause it actual service aof it is therefore distin- guishable from the applicable instant case. The Adoption rule in In re 9-105(d), requires that show cause orders be upon parties result,

served within 90 after issuance. As a and, triggered by clock was accordingly, Maryland Rule 1- 203(c) applied. Cleaners, In First Wholesale ordered the plaintiff complaint to file an amended within 30 after the court granted appellee’s motion for a more definite statement. The court explain did not whether it was 30 entry, after an issuance or Furthermore, service of the order. explicitly the court stated in a court], footnote ”[f]or reasons not clear appellant to [the has not rules,” relied referring Maryland on these Rules and 1- 203(c), so those sections were not at issue in that case. First Wholesale Cleaners, Md.App. note, at 40 n. 792 A.2d at 335 n. 3. We however, that if triggered by the clock was not service of the order mail, plaintiff Thus, then apply. would not First provides Wholesale support Cleaners no Sterling's for Ms. contentions.

385 judgment after a final days it was filed 33 because —three Rule 8-202. Maryland prescribed by the time longer than days that, shall appeal “the notice states Maryland Rule or order entry judgment after of the be filed within of Special The Court is taken.” appeal from the 203(c) held applied examined whether Appeals 1— entry. Since uses the word specifically “Rule 8-202 203(c) service, Rule taken after required is not be action 1— plain lan- apply.” explained “[t]he The court does mail, l-203(c) by applies states that it of Rule guage statutes, not read court. Like we will entry by not to an into a rule where none exists.... ambiguity an triggering prerequisite when service is a only applies clock.”5 that a strict contentions reject Sterling’s also

We because presents to Rule 8-302 issues of fairness adherence going Special Appeals did not know when the Court she would interpretation to file its mandate and also such than less time which to file her provide her with petition. Maryland Atlantic had to file its answer to her 8-606(b) provides that: dismissal, issue the man-

Upon voluntary the Clerk shall cases, In unless a motion immediately. date all other or the orders other- reconsideration has been filed wise, expiration the Clerk shall issue the mandate entry filing opinion Court’s order. Court’s added.) case, Appeals In (Emphasis the Court of 30 September expiration on 2006. The opinion filed its of that would have been October Commentary explains Rules further that: 5. The days are tacked onto important It is to remember that the additional only running period is required when the of the time begins any than service triggered service mail. If event other added, if mail running period, time three are not even is used. Schuett, Commentary Niemeyer & M. Rules Paul V. Linda ed., 2003). (3d Lexis Nexis 2006. Ms. was therefore on notice that the Clerk court issue likely of the intermediate would mandate on October such that her for writ of fact, be due on October 20. the Clerk of would 11 to waited until October issue *10 mandate, in to giving days six extra which file petition days her for writ of certiorari. Ms. had 51 from the date that filed its therefore, and, opinion petition simply to file her cannot in reasonably argue ample that she did not have time which to prepare petition.

Furthermore, that our reject Sterling’s argument we more time to their an- holding respondents prepare allows to for of certiorari than have petitions petitioners swers petitions Maryland to file their for writ of certiorari. Rule 8- 303(d) “[wjithin provides that after service of the file an petition, any party may original copies other and seven petition stating why of an answer to the the writ should be added). agree denied” with Ms. (emphasis We l-203(c) applies petitions Rule to answers to for writ of 8-303(d) by certiorari if service is made mail because Rule to specifically party right affords file answer after A in to respondent service.6 therefore has 18 file mail, if petition, petition an answer to a is served respondent days prescribed by because a has the 15 Rule 1- 303(d) in 1- days provided addition to the three for 203(c). day period this 18 is still shorter than Notwithstanding, day period petitioner ordinarily the 45 that a has to file a certiorari, petition day for writ of and the 51 that Ms. Sterling had to file her for writ of certiorari.

PETITION AND CONDITIONAL CROSS-PETITION DISMISSED. GAIL STERLING TO PAY COSTS. language provides support 6. Such further that the Court did not intend l-203(c) apply for Rule to for writ of The certiorari. Rules Committee, Rule, prior adopting certainly and the had the Instead, ability to use word "service" Rule 8-302. it chose to mandate, provide for the issuance of a rather than service of a mandate. WILNEK, Opinion by J. Concurring The Opinion I the Court’s because it is correct. joined have not extend holding does Court’s for allowed under Rule the time Appeals is a reasonable the Court in the hardship of the two Rules and creates no construction notes, Ap- the Court of Special normal case. As the Court 8-606(b), ordinarily in conformance with Rule issues its peals, filed, party after its so a has at mandate 30 and file a prepare least 45 which to certiorari. arise, however,

A if the intermediate hardship may forthwith, which, its mandate court decides issue under 8-606(b), to do occasionally, it is entitled do, rarely, especially opinion directing does though unreported immediately mandate is and is not available on- situation, fact, party may, very line. In that have little *11 analyze prepare proper time in which to petition for certiorari.

I suggest Standing would that this Court’s Committee on give thought propos- Rules of Practice and Procedure some 8-302(a), provide an amendment to Rule an alternative ing filing for the of a for certiorari: the later of 15 days after the issuance of the Court of Special Appeals or 30 of that court’s filing opinion. mandate cases, great majority precisely the time would remain as it now is—15 after issuance of the mandate. In those rare cases which mandate is issued less than 30 opinion, party would have at least petition. those 30 which to file a