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  • February 24, 2023

    Employee Fired for Facebook Messages Loses Stored Communications Act Case

    A woman who filed a lawsuit under the federal Stored Communications Act 23 months after she was demoted for sending Facebook messages critical of her boss failed to meet the act’s statute of limitation, the U.S Court of Appeals for the Seventh Circuit has ruled.

    Jeff M. Brown

    A Woman’s Thumbs Tapping At The Screen Of A Smartphone With Like Icons Floating Up Like Bubbles

    The U.S. Court of Appeals for the Seventh Circuit ruled that the fired employee failed to file her lawsuit within the statute of limitation, rejects equitable estoppel argument.

    Feb. 24, 2023 – A woman who filed a lawsuit under the Stored Communications Act (SCA) 23 months after she was demoted for sending Facebook messages critical of her boss failed to meet the act’s statute of limitation, the U.S Court of Appeals for the Seventh Circuit has ruled.

    In Uebelacker v. Rock Energy Cooperative, No. 22-1833 (Dec. 12, 2022) – first filed in the U.S. District for the Western District of Wisconsin – the Seventh Circuit Court of Appeals held that the plaintiff failed to show the defendant prevented her from filing her suit before the statute of limitations had run, regardless of her equitable estoppel argument.

    ‘Slimy People at Work’

    In December 2018, Barbara Uebelacker worked as the communications director for Rock Energy Cooperative (Rock Energy).

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    One night that month, Uebelacker and her co-worker Angie Schuman exchanged messages on their personal devices, with each woman using her personal Facebook account. Schuman was upset because Rock Energy had just fired her.

    During the exchange, Uebelacker said she “had no respect” for her bosses, including Rock Energy CEO Shane Larson, and said they didn’t “know the meaning of trust.” Uebelacker also said her bosses were included in a group of “many slimy people at work.”

    Facebook Faux Pas

    On the day after Uebelacker and Schuman conducted their Facebook conversation, Robert Booth, a Rock Energy employee, began transferring files from the computer Schuman had used.

    Booth saw that a browser was open on Schuman’s computer, and that on the browser Schuman had remained signed in to her personal Facebook account.

    The account synchronized with Schuman’s personal devices, and Facebook had refreshed so that the conversation between Schuman and Uebelacker from the night before was visible.

    When Booth opened the conversation, he saw the messages between Schuman and Uebelacker. Booth made screenshots of the messages.

    Demoted after Meeting

    Larson saw the screenshots.

    Larson met with Uebelacker in January 2019 and showed her copies of the screenshots. Uebelacker later testified that Larson fired her during the meeting.

    Larson and Uebelacker met the next day. Larson told Uebelacker she could come back to work if she would accept a demotion; Uebelacker agreed.

    Fired After Email about Position

    In June 2020, Uebelacker discovered that Rock Energy was advertising for a communications position whose duties and responsibilities overlapped with her own; she concluded that Rock Energy intended to replace her.

    Later in June, Uebelacker emailed Rock Energy’s administrative services manager. She asked for an explanation regarding the communications position posting and said she was worried that her Facebook messages were one reason for the posting.

    The next day, Rock Energy fired Uebelacker.

    Summary Judgment for Defendant

    In March 2021, Uebelacker sued Rock Energy in federal court. Uebelacker claimed that Rock Energy had violated the SCA.

    Rock Energy argued that the two-year statute of limitation specified in the SCA had expired and moved for summary judgment.

    The district court granted the company’s motion.

    Inquiry Notice Governs

    Writing for a three-judge panel, Judge Joel Flaum explained that the SCA prohibits the unauthorized access to electronically stored communications.

    Flaum pointed out that a plaintiff suing under the SCA must file suit within “two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.”

    Judge Flaum concluded that inquiry notice governed the SCA’s statute of limitations.

    As a result, he explained, the relevant question was when would a reasonable person have begun investigating Rock Energy’s use of the communications between Uebelacker and Schuman?

    Uebelacker argued that Larson didn’t tell her that Booth had accessed Facebook’s servers to view the messages.

    But, Flaum wrote, “[Uebelacker] did not need to know all the violation’s technical details to be put on inquiry notice.”

    “These meetings provided enough information to spur a reasonable person’s investigation,” Judge Flaum wrote, referring to the meetings between Uebelacker and Larson.

    Plaintiff Was Two Months Late

    Flaum also pointed out that the email Uebelacker sent to Rock Energy’s administrative services manager in June 2020 demonstrated that she had a basic understanding of the company’s potential SCA violation.

    “Uebelacker does not point to any event other than the January 2019 meetings that would have allowed her to piece this narrative together,” Judge Flaum wrote.

    “The email thus further shows that the statutory clock expired in January 2021 – two months before Uebelacker filed her suit.”

    Equitable Estoppel No Savior

    Uebelacker argued she didn’t investigate the potential SCA violation after the January 2019 meeting because she had just been demoted and was afraid that asking about the violation would lead to her termination.

    That argument, Flaum noted, was akin to the doctrine of equitable estoppel. That doctrine bars a defendant from asserting the statute of limitation if the defendant prevented a plaintiff from timely filing suit, for instance by concealing evidence or pledging not to assert the statute of limitations.

    But Judge Flaum reasoned that the doctrine wouldn’t save Uebelacker’s claim.

    “She does not offer any specific statements showing she was actually threatened not to investigate,” Flaum wrote.

    “Uebelacker’s demotion alone is not enough to extend the statute of limitations until she thought her termination was inevitable.”

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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