941 F.2d 726 (8th Cir. 1991), 90-5052, Bartunek v. Bubak

Docket Nº:90-5052SD, 90-5057SD.
Citation:941 F.2d 726
Party Name:Mary Kay BARTUNEK, Mary E. Bertus, Paula Gibson, Annette Oorlog, Candyce Scherr, Sylvia Stotz, and Lori Van Duysen, Appellant, v. Gary BUBAK, M.D., as an individual and in his capacity as a staff physician at Wagner Community Memorial Hospital; Wagner Community Memorial Hospital, Donald Juffer, Morris Schuurmans, Richard Hoffman, Karen Weber, Jean
Case Date:August 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 726

941 F.2d 726 (8th Cir. 1991)

Mary Kay BARTUNEK, Mary E. Bertus, Paula Gibson, Annette

Oorlog, Candyce Scherr, Sylvia Stotz, and Lori Van

Duysen, Appellant,

v.

Gary BUBAK, M.D., as an individual and in his capacity as a

staff physician at Wagner Community Memorial Hospital;

Wagner Community Memorial Hospital, Donald Juffer, Morris

Schuurmans, Richard Hoffman, Karen Weber, Jean Pirner, Merle

Denker, Donald Hubbard, Edward Novak, and Robert Frei, in

their capacity as the Board of Directors of the Wagner

Community Memorial Hospital, Appellees.

Mary Kay BARTUNEK, Mary E. Bertus, Paula Gibson, Annette

Oorlog, Candyce Scherr, Sylvia Stotz, and Lori Van

Duysen, Appellees,

v.

WAGNER COMMUNITY MEMORIAL HOSPITAL, Donald Juffer, Morris

Schuurmans, Richard Hoffman, Karen Weber, Jean Pirner, Merle

Denker, Donald Hubbard, Edward Novak, and Robert Frei, in

their capacity as the Board of Directors of the Wagner

Community Memorial Hospital, Appellants.

Nos. 90-5052SD, 90-5057SD.

United States Court of Appeals, Eighth Circuit

August 22, 1991

Submitted June 14, 1991.

Page 727

Jana Miner Lunsford, Gregory, S.D., argued, for appellant; Rick Johnson, Gregory, S.D., on the brief.

James L. Hoy, Sioux Falls, S.D., argued for appellee Wagner Community Memorial Hospital; Gale Fisher, Sioux Falls, S.D., argued for appellee Gary Bubak, M.D.; Carleton Hoy, Sioux Falls, S.D., on the brief.

Before MAGILL, Circuit Judge, HEANEY, Senior Circuit Judge, and LARSON, [*] Senior District Judge.

MAGILL, Circuit Judge.

Mary Kay Bartunek and six other former employees of the Wagner Community Memorial Hospital appeal the district court's orders dismissing Dr. Gary Bubak as a defendant and granting summary judgment for the remaining defendants, the hospital and its board of directors. The hospital and board of directors cross-appeal, contending that this court lacks jurisdiction because the district court erred in granting an extension of time to the plaintiffs to file their notice of appeal. Because the district court improperly granted the motion to extend time ex parte and applied the wrong standard in considering the motion, we dismiss the appeal and remand the motion to the district court for reconsideration.

I.

Bartunek, with five other nurses and a nurse's aide (the nurses) formerly employed by the Wagner Community Memorial Hospital, sued Dr. Bubak, the hospital, and its board of directors for sexual harassment and intentional infliction of emotional distress. Their claims were brought under 42 U.S.C. § 2000e (Title VII), 42 U.S.C. § 1983, and South Dakota tort law. The district court dismissed Dr. Bubak from the suit on August 2, 1989. It held that there was no basis to exercise jurisdiction over him on the federal claims because he was not the nurses' employer nor a state actor, and found pendent party jurisdiction on the state claim likewise inappropriate. On December 20, 1989, the district court granted summary judgment to the hospital and the board of directors (collectively, the hospital), holding that the nurses had not established that sexual harassment had created a hostile work environment under the test set out in Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir.1988). Specifically, the district court held that as a matter of law, the plaintiffs had failed to prove (1) that the harassment affected the terms or conditions of their employment, and (2) that the employer knew or should have known of the harassment and failed to take proper remedial action. Judgment was entered for the defendants on December 22, 1989.

On January 24, 1990, the nurses tried to file a notice of appeal...

To continue reading

FREE SIGN UP