A federal appeals panel has agreed statutory limitations prevent a Wisconsin woman from suing her former employer because her employer accessed her private text messages complaining about her workplace and bosses, leading to her getting demoted and ultimately terminated.
In March 2021, Barbara Uebelacker sued Rock Energy Cooperative and CEO Shane Larson, alleging the company violated the federal Stored Communications Act when it accessed private Facebook messages between her and a former colleague. According to Uebelacker, Rock Energy first demoted her and later terminated her employment. After Judge James Peterson, of the Western District of Wisconsin, granted summary judgment to the company, Uebelacker challenged the ruling before the U.S. Seventh Circuit Court of Appeals.
The federal appeals court in Chicago also handles appeals from federal courts in Illinois and Indiana.
U.S. Seventh Circuit Court of Appeals Judge Joel Flaum
Seventh Circuit Judge Joel Flaum wrote the panel’s opinion, issued Dec. 12. Circuit Judges Frank Easterbrook and Amy St. Eve concurred.
According to court documents, in December 2018 Uebelacker was using a personal account and device when messaging her recently-fired former coworker, Angie Schuman. Uebelacker, the company’s communications director at the time, wrote she had “no respect” for two bosses, said they didn’t “know the meaning of trust” and were among “many slimy people at work.”
The company discovered the messages the next day when transferring files from Schuman’s old work computer, which had a browser still logged in to her personal Facebook account. The employee who saw the messages took screenshots.
After Larson saw the conversation, he met with Uebelacker in January 2019 and showed her printed copies of the messages. Although Uebelacker said Larson fired her on the spot, the record shows Larson let her return to work at a lesser position.
In June 2020, Uebelacker saw the company advertising for a communications job she thought incorporated many of her duties. Later that month, she contacted a manager about the possible discrepancy.
Rock Energy fired her the next day. and Uebelacker filed her lawsuit about nine months later.
The Seventh Circuit said the Stored Communications Act allows civil lawsuits for up to two years after a plaintiff discovered, or could reasonably have learned of, the alleged violation. Although the messages were tied to Schuman’s December 2018 termination, the panel said Uebelacker knew her employers had seen her private conversations on Shulman’s work computer in January 2019.
“Although Uebelacker argues that Larson failed to disclose that (the company) accessed Facebook’s servers to view the messages, she did not need to know all the violation’s technical details to be put on inquiry notice,” Flaum wrote. “These meetings provided enough information to spur a reasonable person’s investigation.”
The panel also said Uebelacker’s June 2020 email about the job posting “illustrates her basic understanding of the alleged violation” in that she questions how information technology staff accessed Shulman’s private account without permission to get screenshots of an after-hours text exchange.
“Uebelacker does not point to any event other than the January 2019 meetings that would have allowed her to piece this narrative together,” Flaum wrote. “The email thus further shows that the statutory clock expired in January 2021 — two months before Uebelacker filed her suit.”
On appeal, Uebelacker argued the clock shouldn’t have started in January 2019 because the demotion led her to worry further inquiry would result in termination. However, the panel said, she “offers no caselaw to support this argument” and doesn’t allege Rock Energy took any steps to prevent a timely lawsuit.
“The doctrine of equitable estoppel confirms that a vague fear of termination cannot save Uebelacker’s claim,” Flaum wrote. “She does not offer any specific statements showing she was actually threatened not to investigate. Uebelacker’s demotion alone is not enough to extend the statute of limitations until she thought her termination was inevitable.”
Uebelacker has been represented in the case by attorney Julie A. Lewis, of Madison, Wisconsin.
Rock Energy has been represented by attorney Rhea A. Myers, of the firm of Boardman & Clark, also of Madison.