Barbara J. Uebelacker v. ROCK ENERGY COOPERATIVE and SHANE LARSON

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1833
BARBARA J. U EBELACKER ,
Plaintiff-Appellant,
v.
R OCK ENERGY C OOPERATIVE and SHANE LARSON,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 21-cv-00177 — James D. Peterson, Chief Judge.
____________________
A RGUED NOVEMBER 7, 2022 — D ECIDED D ECEMBER 12, 2022
____________________
Before FLAUM, EASTERBROOK , and S T . EVE , Circuit Judges.
FLAUM, Circuit Judge. Barbara Uebelacker sent a former co-
worker private Facebook messages disparaging her bosses.
Soon afterwards, Uebelacker’s employer discovered the mes-
sages and confronted her. She was demoted and eventually
fired. Now, Uebelacker brings a claim under the Stored Com-
munications Act, arguing that her employer was not author-
ized to view the messages. The district court granted sum-
mary judgment based on the statute of limitations. We affirm.

-- 1 of 6 --

2 No. 22-1833
I. Background
One evening in December 2018, Barbara Uebelacker and
Angie Schuman exchanged a flurry of Facebook messages us-
ing their personal accounts and devices. Schuman had just
been fired from Rock Energy Cooperative and was upset.
Uebelacker, who still worked as the communications director
for the company, joined in with complaints of her own.
Uebelacker took special aim at two of her bosses; she said that
she had “no respect” for them, that they did not “know the
meaning of trust,” and that they were among the “many slimy
people at work.”
The next day, one of Rock Energy’s employees, Robert
Booth, began transferring files from Schuman’s former work
computer so others could access them. Booth discovered that
Schuman was still signed in to her personal Facebook account
on the active internet browser. The account synched with
Schuman’s activity on other devices, so it had refreshed to dis-
play Schuman’s recent conversation with Uebelacker. Booth
opened the conversation, saw Uebelacker’s messages about
Rock Energy’s upper management, and took screenshots.
The screenshots made their way to Shane Larson, Rock En-
ergy’s CEO and a primary target of Uebelacker’s derogatory
comments. In January 2019, Larson met with Uebelacker. He
told her that Booth had found the messages on Schuman’s
work computer and showed her printed copies of the screen-
shots. Uebelacker claims that Larson fired her on the spot. At
any rate, the two met again the next day. Larson said
Uebelacker could return to work if she accepted a demotion
along with certain other conditions. She agreed.

-- 2 of 6 --

No. 22-1833 3
Around June 2020, Uebelacker learned that Rock Energy
had posted an advertisement for a communications position
that she felt overlapped with many of her own responsibili-
ties. In short, Uebelacker thought she was being replaced. She
emailed Rock Energy’s administrative services manager later
that month, requesting an explanation and voicing her con-
cern that the Facebook messages played a role. Rock Energy
fired her the next day.
In March 2021, Uebelacker brought this lawsuit, asserting
a violation of the Stored Communications Act. The district
court granted the defendants’ motion for summary judgment
on the grounds that the statute of limitations had already run.
Uebelacker appealed.1
II. Discussion
This appeal comes to us from summary judgment. Our re-
view is de novo. Smith v. City of Janesville, 40 F.4th 816, 821 (7th
Cir. 2022). We “view the facts and draw reasonable inferences
in the light most favorable to the non-moving party.” Parker
v. Brooks Life Sci., Inc., 39 F.4th 931, 936 (7th Cir. 2022). Sum-
mary judgment is appropriate if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).
The Stored Communications Act prohibits unauthorized
access to communications in electronic storage. 18 U.S.C.
§ 2701(a). Civil actions under the Act must be brought no later
1 Uebelacker’s remaining claim is for a violation of her right of privacy
under Wisconsin law. The district court relinquished its jurisdiction over
that claim after disposing of her claim under the Stored Communications
Act. The state-law claim is not at issue here.

-- 3 of 6 --

4 No. 22-1833
than “two years after the date upon which the claimant first
discovered or had a reasonable opportunity to discover the viola-
tion.” Id. § 2707(f) (emphasis added). Our inquiry here con-
cerns this provision’s second prong.
At the outset, we must determine which accrual rule cor-
responds to “a reasonable opportunity to discover the viola-
tion.” The parties argue for inquiry notice, which kicks in
“when the victim … became aware of facts that would have
led a reasonable person to investigate whether he might have
a claim.” Tregenza v. Great Am. Commc’ns Co., 12 F.3d 717, 718
(7th Cir. 1993); see also Fujisawa Pharm. Co. v. Kapoor, 115 F.3d
1332, 1335 (7th Cir. 1997) (holding that inquiry notice requires
more than “mere suspicion”).
The district court agreed that inquiry notice governs, and
so do we. See Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir.
1998) (interpreting similar language in the Federal Wiretap
Act to require inquiry notice); Sewell v. Bernardin, 795 F.3d 337,
340 (2d Cir. 2015) (explaining that “the limitations period [un-
der the Stored Communications Act] begins to run when the
plaintiff discovers” the violation or “has information that
would motivate a reasonable person to investigate”).
We therefore ask when a reasonable person would have
begun investigating in this case. During the January 2019
meetings, Larson showed Uebelacker screenshots of her con-
versation with Schuman. He also told her that Booth found
the messages on Schuman’s work computer. Although
Uebelacker argues that Larson failed to disclose that Booth ac-
cessed 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. See Sewell, 795 F.3d at 340–41. These meetings
provided enough information to spur a reasonable person’s

-- 4 of 6 --

No. 22-1833 5
investigation. See Davis, 149 F.3d at 618 (considering when the
plaintiff knew “that something was afoot”).2
In addition, Uebelacker’s June 2020 email illustrates her
basic understanding of the alleged violation. She questioned
how an “IT staff person was able to access [Schuman’s] pri-
vate Messenger account without her permission, search the
private account, and locate [Uebelacker’s] private, after-hours
conversation with her.” Uebelacker does not point to any
event other than the January 2019 meetings that would have
allowed her to piece this narrative together. The email thus
further shows that the statutory clock expired in January
2021—two months before Uebelacker filed her suit.
Still, Uebelacker urges us to overlook her lack of investi-
gation following the meetings. As she puts it, she had just
been demoted and feared that further inquiry would get her
fired. Uebelacker suggests that it only became reasonable for
her to investigate in June 2020, when she saw Rock Energy’s
posting for a position in her department. At that point,
Uebelacker thought her job security was in peril regardless.
Uebelacker offers no caselaw to support this argument.
Her position somewhat resembles the equitable-estoppel doc-
trine, which prevents defendants from asserting a limitations
2 Uebelacker cites a Western District of Kentucky case where the court
denied the defendant’s motion to dismiss for failure to comply with the
Act’s limitations period. See Petty v. Bluegrass Cellular, Inc., 440 F. Supp. 3d
692 (W.D. Ky. 2020). Given the procedural posture, the court asked
whether the complaint “affirmatively show[ed] that the claim [was] time-
barred.” Id. at 695 (citation omitted). The court held that it did not, noting
the plaintiff’s claim that she did not receive the forms that would have put
her on notice. Id. at 694, 696. Here, we are at summary judgment. More to
the point, Uebelacker admits that she saw the screenshotted messages.

-- 5 of 6 --

6 No. 22-1833
defense if they “took active steps to prevent the plaintiff from
suing in time, such as by hiding evidence or promising not to
plead the statute of limitations.” Vergara v. City of Chicago,
939 F.3d 882, 886 (7th Cir. 2019) (quoting Lucas v. Chi. Transit
Auth., 367 F.3d 714, 721 (7th Cir. 2004)). To apply equitable es-
toppel, the “plaintiff’s reliance on a defendant’s conduct
[must] be ‘both actual and reasonable.’” Franklin v. Warming-
ton, 709 F. App’x 373, 374–75 (7th Cir. 2017) (quoting Rager v.
Dade Behring, Inc., 210 F.3d 776, 779 (7th Cir. 2000)). We have
indicated that threats are often insufficient in this context. See,
e.g., id. at 375 (refusing to apply equitable estoppel based on
“dated death threats” the plaintiff learned of “secondhand”);
Vergara, 939 F.3d at 887 (rejecting the position that threats
made years earlier justified equitable estoppel).
The doctrine of equitable estoppel confirms that a vague
fear of termination cannot save Uebelacker’s claim. 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. See Shanoff v. Ill. Dep’t
of Hum. Servs., 258 F.3d 696, 702 (7th Cir. 2001) (preventing the
plaintiff from “sidestep[ping] the statute of limitations,”
which we must “seriously recognize and apply”).
As such, the Act’s limitations period began running in Jan-
uary 2019 and expired in January 2021. Uebelacker did not
bring this suit until March 2021, so her claim is time-barred.
III. Conclusion
We AFFIRM the judgment of the district court.

-- 6 of 6 --