Sterling v. Atlantic

Annotate this Case

Download PDF

Sterling v. Atlantic Automotive Corporation, No. 105, September Term, 2006 HEADNOTE: PETITION FOR WRIT OF CERTIORARI TIME LIMITATIONS DISMISSAL Pursuant to Maryland Rule 8-302(a), a petition for writ of certiorari may not be filed later than 15 days after the Court of Special Appeals issues its mandate. Ordinarily, a petition for writ of certiorari filed more than 15 days after the intermediate appellate court issues its mandate is untimely and must be dismissed. Maryland Rule 1-203(c), which adds three days to prescribed periods in situations where service triggers the clock and the parties are served by mail, does n ot apply to petition s for writ of certiorari. The Co urt of Specia l Appeals issues its mandate; issuance is not synonymous with service of process. In the Circu it Court for M ontgom ery County No. 235718 -V IN THE COURT OF APPEALS OF MARYLAND No. 105 September Term, 2006 _______________________________________ GAIL STERLING v. ATLANTIC AUTOMOTIVE CORPORATION ______________________________________ Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, A lan M. (R etired, Spec ially Assigned), JJ. ______________________________________ Opinion by Greene, J. Wilner, J., Concurs. ______________________________________ Filed: June 4, 2007 This matter arises from a sexual harassment claim filed by Gail Sterling ( Ms. Sterling ) against her e mployer, Atlantic Auto motive C orporation ( Atlantic ) . The main issue with which we are concerned is whether Ms. Sterling filed her petition for writ of certiorari, in a timely matter, in a ccordanc e with M aryland Rule 8-302. W e shall hold that Ms. Sterling s petition was u ntimely becau se she filed it 1 9 days after the intermediate appellate court issued its mandate. Pursuant to Rule 8-3 02, a petition f or writ of certiorari may be f iled no la ter than 1 5 days af ter the C ourt of Specia l Appe als issue s its man date. FACTUAL AND PROCEDURAL BACKGROUND Ms. Sterling filed a civil suit against Atlantic, her form er employer, for two types of workplace sexual harassm ent and for reta liation. The Circuit Cou rt for Mo ntgomery C ounty entered judgm ent in he r favor . A jury found in favor of Ms. Sterling on her claim, that her employer s sexual harassment created a hostile work environment, and awarded compensatory damages in the amount of $195,000. The trial judge den ied Atlantic s posttrial motions after remitting the jury s damages award to $100,000. The trial judge also awarded Ms. Sterling $304,063 in expert witness and attorney s fees and $46,437 in costs. Atlantic filed a timely appeal to the Court of Special Appeals and Ms. Sterling filed a cross-appeal concerning the extent of the trial court s award of fees. Th e intermed iate appellate court filed an unreported opinion on September 5, 2006. It determined that eight of Atlantic s nine claims were without merit. As to the remaining issue, the court ruled that the trial judge had improper ly instructed the jury as to the parties respective burdens of proof, in a hostile work environment action, and therefore vacated the judgment of the Circuit Court and remanded the case for a n ew trial. The intermediate appellate court issued its mandate on October 11, 2006. Ms. Sterling filed a petition for writ of certiorari with the Clerk of this Court, on October 30, 2006.1 On No vember 2 , 2006, Atla ntic filed a m otion to dismiss Ms. Sterling s petition as untimely, and, on November 13, 2006, filed a conditional cross-petition for writ of certiorari. 2 On December 14, 2006, this Court granted both the 1 Ms. Sterling presented the following questions in her petition for writ of certiorari: 1. Is the petitio n for wri t of c ertio rari timely? 2. Whethe r, under A rticle 49B of the Code of Maryland, an employee-victim of hostile work environment sexual harassment must prove that the conduct of a supervisor is imputed to the employer, or whether Maryland Courts read Article 49B and Title VII in harmony and thus impose an affirmative defense burden on emplo yers, as required by the Supre me Cou rt in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc . v. Ellerth, 524 U.S. 742 (19 98)? 3. Wheth er any error that may have been committed by the Circuit Court when it instructed the jury using the Supreme Court s Faragh er/Ellerth affirmative defense to employer liability was harmless error, since it was admitted at trial that the person responsible for the hos tile work en vironmen t was not a mere co-work er, but rather was the victim s sup ervisor? 2 Atlantic presented the following questions in its conditional cross-petition: A. If the Cou rt determine s that Faragher/Ellerth standard should be utilized to define the elemen ts of a hostile work environment claim: 1. Whether a company s distribution of a n antiharassment policy and the availability of hig her mana gement to (contin ued...) -2- petition and conditional cross-petition and ordered that both parties brief the question of the timeline ss of the petition . Sterling v. Atl. Auto. Corp., 396 Md. 12, 91 2 A.2d 648 (2 006). DISCUSSION Because of our holdin g that Ms . Sterling failed to timely file her petition for writ of certiora ri, we w ill addre ss only tho se argu ments p ertainin g to that issue. Ms. Sterling argues that her petition for writ of certiorari was timely. She acknowledges, as she must, that the Court of Special Appeals issued its mandate on October 2 (...continued) receive complain ts satisfies the fir st Faragher/Ellerth affirmative defense. prong of the 2. Whether an employer is required to establish the second prong of the Faragh er/Ellerth affirmative defense where it establishes that it took prompt remedial action, and the sexual harassment stopped. 3. Whether an employer can establish the second element of the Faragh er/Ellerth affirmative defense by demonstrating that the plaintiff did not take advantage of preventive and corrective procedures before the harassment became severe or pervasive. B. If the Cou rt determine s that the Manikhi/Magee standard should be utilized to define the elemen ts of a hostile work environment claim, whether a plaintiff can prevail under this standard where the hara ssmen t stops af ter she c ompla ins. C. Whether the after acquired evidence doctrine precludes the recovery of compensatory damages in a hostile work environment sexual harassment action. D. Whether the courts below were required to enforce the provisio ns of th e parties eviden tiary stipula tion. -3- 11, 2006 and that 15 days after the date of issuance was October 26, 2006. Ms. Sterling argues, however, that she was entitled to three extra days (October 27, 28, and 29) because of the extension provided for in Maryland Rule 1-203(c), which states: Whenever a party has the right or is required to do some act or take some proceeding within a prescribed period after service upon the party of a notice or other paper and service is made by mail, thre e days sh all be ad ded to th e presc ribed p eriod. Ms. Sterling contends that this rule applies to cases where a court sends a notice or order by mail and the parties do not receive any more expedient notice in her opinion, the facts of the instant case. Ms. Sterling argues that, in the case sub judice, the manner in which the court issued its mandate fits within the o rdinary definition of service and the m andate fits within the ordinary definition of notice or other paper, such that Rule 1-203(c) applies. In addition, Ms. Sterling argues that she was entitled to an additional day (October 30) in which to file her petition because of Maryland Rule 1-203(a), which states: (a) Computation of time after an ac t, event, or d efault. In computing any period of time prescribed by these rules, by rule or order of court, or by any applicable statute, the day of the act, event, or default a fter which the designated period of time begins to run is not included. If the period of time allowed is more than se ven da ys, intermediate Saturdays, Sundays, and holidays are counted; b ut if the period of time allowed is seven days or less, intermediate Saturdays, Sundays, and holidays are not counted. The last day of the period so computed is included unless: (1) it is a Saturday, Sunday, or holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or holiday; or (2) the act to be done is the filing of a paper in court and the office of the clerk of that court on the last day of the period is -4- not open, or is closed for a part of the day, in which event the period runs until the end of th e nex t day th at is n ot a S aturday, Sun day, holiday, or a day on which the office is not open during its regular hours. Ms. Sterling contends that because October 29, 2006 was a Sunday, and the Clerk s office was therefore not open, she filed her petition in a timely manner when she filed it on Mon day, Octo ber 30, t he nex t day that th e offic e was o pen. According to Ms. Sterling, the language of Rule 8-302 is also dispositive. That provision p rovides, in pe rtinent part: (a) From ap peal to Court o f Special A ppeals. If a notice of appeal to the Court of Special Appeals has been filed pursuant to Rule 8-201, a petition for a writ of certiorari may be filed either before or after the Co urt of Special Appeals has rendered a decision, but not later than 15 days after the Court of Special Appeals issues its mandate. Ms. Sterling asserts that the ordinary definition of the w ord issue, according to B lack s Law Dictionary, m eans [t]o s end out of ficially . . . to deliver. D rawing u pon this definition, Ms. Sterling argues that the word issue is synonymous with the word service and therefore, the Court intended that Rule 1-203(c) should apply to petitions for writ of certiorari. Mrs. Sterling exp lains that othe r rules use the word e ntry and that if the Court did not wan t Rule 1-20 3(c) to apply, then it would have used the word entry, instead of issue in 8-30 2(a), be cause e ntry is not s ynonymo us with service . Ms. Sterling also points out that Maryland Rule 1-10 1(a) states spe cifically that Title 1 applies to all matters in all courts of this State, except the Orphans Courts and except as -5- otherwise specifically prov ided, thus c ompelling the applicatio n of Ru le 1-203(c) to this case. Lastly, Ms. Sterling avers that fairness compels the application o f Rule 1-2 03(c) to this case because a respondent should not have mo re time in which to file an opposition to a petition for writ of certiorari than a petitioner had to file the petition. Atlantic counters that Ms. Sterling s petition was untimely because she f iled i t 19 d ays after the Court of Special Appeals issued its mandate, in violation of the 15 day strict deadline imposed by Rule 8-30 2(a). Atlantic e xplains that, in th is case, the Court of Special Appea ls issued its mandate on October 11, 2006, making the 15 day deadline October 26, 2006, a nd not O ctober 3 0, 2006 . Atlantic avers further that Maryland Rule 1-20 3(c) does n ot apply becau se it applies only to service by mail, not to an entry by the court. Atlantic cites Kamara v. Edison Bros. Apparel Stores, Inc., 136 Md. App. 333, 337-38, 765 A.2d 1005, 1007 (2001), for the proposition that Rule 1-203(c) applies only when service is a prerequisite to triggering the clock, and not in other instances when something else triggers the clock, even if mail is used. Atlantic points out that according to Ma ryland Ru le 8-302, the issuance o f the man date triggers the clock and that Maryland Rule 8-302 does not mention service of the mandate. In accordance with this rule, Atlantic argues, the clock was triggered on October 11, 2006, the date that the Court of Special Appeals issued its mandate, and therefore, the deadline for Ms. S terling s petition was O ctober 2 6, 2006 . Furthermore, Atlantic argues that Ms. Sterling s policy arguments are unpersuasive. -6- Atlantic explains that Ms. Sterling had ample time in which to file her petition for writ of certiorari because th e Court of Special A ppeals filed its opinion on September 5, 2006, which contained the court s decision and rationale. According to Atlantic, Ms. Sterling had 36 d ays between the time that th e intermed iate appellate c ourt filed its op inion and th e date that it issued its mandate, in addition to the 15 days after the mandate, to prepare and file her petition. Atlantic no tes further tha t while Ms. Sterling was unable to file her petition in the 51 days allotted to her, Atlantic was able to prepare its Answer and Conditional CrossPetition for Ce rtiorari w ithin the 15 days p ermitted by the rule s. Atlantic also discounts Ms. Sterling s argument that she could not know the date upon which the intermediate appellate court issued its mandate until the mandate arrived at her attorney s office by mail. Atlantic points out that Maryland Rule 8-606(b) provides that the Clerk shall issue the mandate upon the expiration of 30 da ys after the filing of the Court s opinion or entry of the Court s order. Because the Court of Special Appeals issued its mandate 36 days after it filed its opinion, Ms. Sterling actually had an additional six days of preparation time to file he r petition. Atlan tic states that, as a result, Ms. Sterling received ample notice of when the mandate would be issued and when her petition would be due. Lastly, Atlantic points out that Maryland Rule 8-303(d) explains that an answer to a petition for writ of certiorari must be filed within 1 5 days after service of the petition. In Atlantic s view, this demonstrates that if the Court intended, in its adoption of Rule 8-302, for the clock to be triggered by the service of the mandate, it certainly had such language at -7- its disposal. Instead, the Rules Committee s recommendation, and the Court in its adoption of the rule, explicitly stated that the clock is triggered by the issuance of the mandate. We agree with Atlantic that Maryland Rule 8-302 allows Ms. Sterling 15 days, after the date of the issuance of the Court of Special Appeals s mandate, in which to file her petition for writ of certiorari. M aryland Rule 1-203(c) d oes not ap ply to petitions for writ of certiorari because the clock is triggered by the issuance of the mandate, and not by service by mail. W e also ag ree with Atlantic that M s. Sterling had notice of the inte rmediate appellate court s decision, notice as to when it would issue its mandate , and, therefo re, ample time in which to file her petition for w rit of certiorari. Accordingly, we shall dismiss Ms. Sterling s pe tition for w rit of certi orar i as untim ely. Time Limitations for Filing a Petition for Writ of Certiorari Md. Code (1 974, 200 6 Repl. V ol.), § 12-201 of the Co urts and Judicial Proceedings Article, entitled Certiorari to Court of Special Appeals provides: Except as provided in § 12-202 of this subtitle, in any case or proceeding pending in or decided by the Court of Special Appea ls upon appeal from a circuit court or an orphans court or the Maryland Ta x Co urt, a ny party, including the State, ma y file in the Court of Appeals a petition for certiorari to review the case or proceedin g. The petition may be filed either before or after the Court of Special Appeals has rendered a decision, but not later than the time prescribed by the Maryland Rules. In a case or proceeding described in this section, the Court of Appea ls also may issue the writ of certiorari on its own motion. (Empha sis added.) To examine the time prescribed by the Maryland Rules, w e turn first to Rule 8-302, which is entitled Petition for writ of certiorari Times for filing. The text of -8- Maryland Rule 8-302 begins by mirroring the language of Md. Code (1974, 2006 Repl. V ol.), § 12-201 of the Courts and Judicial Pro ceedings A rticle. It reiterates that a petition for writ of certiorari may be filed either before or after the Court of Special Appeals has rendered a decision . . . . It then prescribes the applicable time period referenced in § 12-201 of the Courts and Judicial Proceedings Article. It states explicitly that a petition for writ of certiorari may be filed before or after the Court of Special Appeals s decision, but not later than 15 days after the C ourt of Sp ecial App eals issues its m andate. T he langua ge of this rule is clear the petition must be filed within 15 days after the issuance of the mandate. We therefore conclude that if the petition for writ of certiorari arrives in the Clerk s office after the fifteenth day, then it is not timely filed.3 Ms. Sterling contends that Maryland Rule 1-203(c) applies to the instant case because she received a copy of the mandate via the mail. 4 We disagree. Rule 1-203(c), entitled 3 Maryland Rule 1-203(a) provides an exception to this 15 day dea dline. If individ uals are unable to file documents with the Clerk s office because the of fice is closed , the Rule gives individuals until the end of the next day after the dea dline tha t is no t a Sa turday, Sunday or holiday to file the document or petition. We agree with Ms. Sterling that Rule 1203(a) applies to pe titions for w rit of certiorari if the fifteenth day falls on a weeken d or a holiday. We do not agree, however, that Rule 1-203(a) applies to the instant case because the fifteenth day after issua nce, October 26, 2006, was a T hurs day, a nd not a S aturday, Sund ay, a holid ay, or othe r occas ion wh en the C lerk s of fice w as close d. 4 Ms. Sterling relies on two cases to su pport her contentions. She cites In re Adoption /Guardia nship Nos. T00130003, T00130004, 370 Md. 250, 805 A.2d 25 4 (2002), and First Wholesale Cleaners, Inc. v. Donegal Mutu al Insur ance C o., 143 Md. App. 24, 792 A.2d 325 (2 002). In re Ado ption/Gu ardiansh ip, 370 Md. at 256, 805 A.2d at 257-58, involved the termination of parental rights. Show cause orders were served on the two children, through th eir Legal A id attorney, to inform them that if they wished to object to the (contin ued...) -9- Additional time after s ervice by mail, states explicitly that [w]henever a party has the right or is required to do som e act . . . within a pr escribed p eriod after se rvice upon the party of a notice or other paper and servic e is made by mail, three days shall be added to the prescribed period. Rule 1-203(c) is inapplicable to petitions for writ of certiorari because it refe rs to a pres cribed period aft er se rvice upon a party, specifically service made by m ail. While Ms. Sterlin g received a copy of the mandate by mail, service is not a requirement associated with the issuance of a mandate. As Rule 8-302 states, the Court of Special Appea ls issues a man date, it is not required to serve the mandate upon the parties as a prerequisite to its issuance or effective date. Kamara, 136 Md. App. at 336-38, 765 A.2d at 1007, is instructive on this point because entry of a judgment is analogou s to the issuan ce of a m andate, des pite the fact that 4 (...continued) guardianship change, they had 30 days in which to do so, in ad dition to an ex tra th ree d ays provided for b y Rule 1-203(c). This case does not support Ms. Sterling s contentions because it required actual service of a document; it is therefore distinguishable from the instant case. The applicable rule in In re Adoption was Maryland Rule 9-105(d), which requires that show cause o rders be served upon th e parties within 90 days a fter issu ance. As a result, the clock was triggered by service and, accordingly, Maryland Rule 1-203(c) applied . In First W holesa le Clea ners, the Court of Special A ppeals ord ered the pla intiff to file an amende d compla int within 30 days after the court granted the ap pellee s motion for a more definite statement. The cou rt did not explain wheth er it was 30 days af ter an entry, issuance or service of the order. Furthermore, the court explicitly stated in a footnote that [f]or reasons not clear to [the co urt], appellant h as not relied o n these rules , referring to Maryland Rules 1-203(a) an d 1-203(c), so those sections were not at issue in that case. First Wholesa le Cleaners, 143 Md. App. at 40 n.3, 7 92 A.2 d at 335 n.3. We note, however, that if the clock was not triggered by service of the order upon the plaintiff by mail, then Rule 1203(c) would not apply. Th us, First Wholesale Cleaners provides no support for Ms. Sterling s contentions. -10- Ms. Sterling argues that entry is much more stringent than issue. In Kamara, the intermediate appellate court was asked to d etermine w hether the trial c ourt erred in striking the notice of an appeal on the grounds that it was untimely filed beca use it was file d 33 days after a final judgment - three days longer than the time prescribed by Maryland Rule 8-202. Maryland Rule 8-202(a) states that, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken. The Court of Special Appea ls examined whether Rule 1-203(c) applied and held that Rule 8-202 specifically uses the word entry. Since action is not required to be taken after service, Rule 1-203(c) does not apply. The court explained that [t]he plain language of Rule 1-203(c) states that it applies to service by ma il, not to an entry by the court. Like s tatutes, we w ill not read an am biguity into a rule wh ere none e xists . . . . Rule 1-203(c) only applies when se rvice is a prere quisite to trigge ring the clock. 5 We also reject Ms. Sterling s contentions that a strict adherence to Rule 8-302 presents issues of fairness because she did not know when the Court of Special Appeals was going to file its mandate and also that such an interpretation would provide her with less time 5 The M aryland Rule s Comm entary explains further that: It is important to remember that the additional days are tacked onto the required time period only when the running of the period is trig gere d by service by m ail. If any event other than service begins the running of the time period, th ree d ays are not added, even if mail is used. Paul V. Niem eyer & L inda M . Schue tt, Maryla nd Ru les Com menta ry 22 (3d ed., Lexis N exis 2003) . -11- in which to f ile her petition th an Atlantic had to file its answer to her petition. Maryland Rule 8-60 6(b) provid es that: Upon a voluntary dismissal, the Clerk shall issue the mandate imm edia tely. In all other cases, unless a motion for reconsideration has been filed or the Court orders otherwise, the Clerk shall issue the mandate upon the expiration of 30 days after the filing of the Court s opinion o r entry of the Court s order. (Empha sis added.) In this case, the Court of Special Appeals filed its opinion on September 5, 2006. The expiration of 30 days after the filing of that opinion would have been October 5, 2006. Ms. Sterling was therefore on notice that the Clerk of the intermediate appellate court would lik ely issue the ma ndate on October 5, suc h that her petition for writ of certiorari would be due on Oc tober 2 0. In fact, the Clerk of th e Court of Special A ppeals w aited until October 11 to issue the mandate, giving Ms. Sterling six extra days in which to file her petition for writ of certiorari. Ms. Sterling had 51 days from the date that the Court of Special Appea ls filed its opinio n to file her petition and, therefore, sim ply cannot rea sonably argue th at she d id not h ave am ple time in whic h to pre pare he r petition . Furthermore, we reject Ms. Sterling s argument that our holdin g allows re sponden ts more time to prep are their answ ers to petitions f or writ of c ertiorari than p etitioners hav e to file their petitions f or writ of certiorari. Maryland Rule 8-303(d) provides that [w]ithin 15 days after service of the petition, any other party may file an original and seven copies of an answer to the petition stating why the writ should be denied (emphasis added). We agree with Ms. Sterling that Rule 1-203(c) applies to answers to petitions for writ of certiorari if -12- service is made by mail because Rule 8-303(d) specifically affords a party the right to file an answer after service.6 A respondent therefore has 18 days in which to file an answer to a petition, if the petition is served by mail, because a respondent has the 15 days prescribed by Rule 1-303(d) in addition to the three days provided for by Rule 1-203(c). Notwithstanding, this 18 day period is still sho rter than the 4 5 day period th at a petitioner o rdinarily has to file a petition for writ of certiorari, and the 51 day period that Ms. Sterling had to file her petition for writ of certiorari. P E T I T I O N A N D CONDITIONAL CROSS PETITION DISMISSE D. GAIL STERLING TO PA Y COSTS. 6 Such language provides further support that the Court did not intend for Rule 1203(c) to apply to petitions for wr it of certi orari. The Rules Committee, and the Court prior to adopting the Rule, certainly had the ability to use the word service in Rule 8-302. Instead, it chose to provide for the issuance of a mandate, rather than service of a mandate. -13- IN THE COURT OF APPEALS OF MARYLAND No. 105 September Term, 2006 ______________________________________ GAIL STERLING v. ATLANTIC AUTOMOTIVE CORPORATION ______________________________________ Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, Alan M. (R etired, specially assigned) JJ. ______________________________________ Concurring Opinion by Wilner, J. ______________________________________ Filed: June 4, 2007 I have joined the Court s Opinion because it is correct. The Court s holding that Maryland Rule 1-203(c) does not extend the time allowed under Rule 8-302(a) for filing a petition for certiorari to the Court of Special Appeals is a reasonable construction of the two Rules and creates no hardship in the normal case. As the Court notes, the Court of Special Appeals, in conform ance with Rule 8-60 6(b), ordina rily issues its mandate 30 days after its opinion is filed, so a party has at least 45 days in which to prepare and file a pe tition for certiorari. A hardship m ay arise, howe ver, if the interm ediate appe llate court dec ides to issue its mandate forthwith, which, under Maryland Rule 8-606(b), it is entitled to do and occa sion ally, though rarely, does do, especially if the opinion directing that m andate is unrepo rted and is not im media tely availab le on-lin e. In that situation, a par ty may, in fact, have very little time in which to analyze the opinion and prepare a proper petition for certiorari. I would suggest that this Court s Standing Committee on Rules of Practice and Procedure give some thought to proposing an amendment to Rule 8-302(a), to provide an alternative period for the filing of a pe tition for certiorari: the later of 15 days after the issuance o f the Cou rt of Specia l Appeals mandate or 30 days after the filing of that court s opinion. In the great majority of cases, the time would remain precisely as it now is 15 days after issua nce of the mandate . In those rare c ases in which the mandate is issued less than 30 days after the filing of the opin ion, the party w ould have at least those 3 0 days in which to file a petition.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.