## Facts

- Gary Leventhal, a Principal Accountant at the New York State Department of Transportation (DOT), maintained an approved outside tax practice subject to a condition that it not interfere with his DOT duties.
- DOT policy treated misuse of state time or equipment (including computers) for personal business as misconduct.
- DOT received anonymous allegations that an employee believed to be Leventhal was neglecting duties and misusing state resources.
- Internal investigators, without Leventhal’s consent, accessed his state-owned, password-protected office computer and printed a list of file names.
- The file-name list suggested non-standard software; follow-up checks confirmed a personal tax preparation program on the computer.
- DOT pursued disciplinary charges that were later settled, but Leventhal lost a provisional higher-level appointment and did not receive a discretionary 3.5% salary increase.
- Leventhal sued under 42 U.S.C. § 1983 alleging (1) an unconstitutional computer search under the Fourth Amendment and (2) denial of due process under the Fourteenth Amendment based on the employment actions.

## Issues

1. Whether DOT’s warrantless searches of Leventhal’s workplace computer violated the Fourth Amendment.
2. Whether Leventhal had a protected property or liberty interest in a provisional appointment or a discretionary salary increase sufficient to trigger Fourteenth Amendment due process protections.

## Decision

- The Second Circuit affirmed summary judgment for defendants and dismissal of the complaint.
- The court assumed Leventhal had some limited expectation of privacy in his office computer’s contents under workplace “operational realities,” but held the searches were reasonable.
- The court held Leventhal had no protected property interest in a provisional appointment and no protected property interest in a discretionary raise.
- The court rejected any liberty-interest claim because the record did not support a “stigma-plus” theory requiring a name-clearing hearing.
- Because no constitutional violation was found, the court did not reach qualified immunity.

## Legal Principles

- Public-employee workplace searches conducted for work-related, non-law-enforcement purposes are evaluated for reasonableness, not probable cause or warrant requirements, and must be justified at inception and reasonable in scope.
- A public employee’s expectation of privacy in workplace effects, including a computer, depends on workplace practices, policies, and other “operational realities,” and may be limited even where some privacy expectation exists.
- A search may be reasonable when grounded in specific allegations of misconduct and conducted in a targeted, minimally intrusive manner (e.g., reviewing file names before examining contents).
- A Fourteenth Amendment property interest requires a state-law-based entitlement, not a unilateral expectation; provisional public employment typically does not create such an entitlement.
- Discretionary pay increases generally do not create property interests because the employee lacks an entitlement to receipt.
- A liberty interest based on reputational harm requires proof of stigmatizing statements plus an alteration of legal status and, typically, public dissemination by the government.

## Conclusion

The court held that DOT’s incremental, work-related inspection of a state employee’s office computer was reasonable under the Fourth Amendment and that the employee lacked constitutionally protected property or liberty interests in a provisional appointment or a discretionary raise, defeating his due process claims.


Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001)