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Gary Leventhal v. Lawrence Knapek, et al.

266 F. 3d 64 (2d Cir., September 26, 2001)

Employee Has Legitimate Expectation Of Privacy In Office Computer In Absence Of Usage Policy Or Regular Practice Of Inspection

The Second Circuit holds that a government employee has a reasonable expectation of privacy in an office computer located in his private office in light of the absence of both a computer usage policy advising him to the contrary, and a regular practice by his employer of searching the same.  The Court nonetheless holds that the government's search of its employee's computer for evidence of suspected work - related misconduct did not violate the employee's rights under the Fourth Amendment.  Such searches are permitted if the search is both justified at its inception and of appropriate scope.  Such was the case here, because the government had received notice of alleged job-related misconduct by the plaintiff employee and had conducted an appropriately circumspect inspection of his office computer to ascertain the validity of these allegations.

The Second Circuit also affirmed the dismissal of plaintiff's claims that both the government's failure to give him a pay raise, as well as its decision to demote him, violated his Due Process rights.  Such claims failed because plaintiff lacked the requisite property interest in either his job or raise to sustain a Due Process violation.

DOT Investigates Allegations Of Job-Related Misconduct

Plaintiff Gary Leventhal ("Leventhal") was employed as an accountant by the New York State Department of Transportation ("DOT") in its accounting bureau.  The DOT received an anonymous letter (the "Letter"), accusing several members of the accounting bureau of job-related misconduct.  The essence of these complaints was that the employees were spending their working hours on personal pursuits.  While the letter did not identify plaintiff by name, it was clear from its content that he was one of the employees it discussed.  The Letter accused plaintiff of excessive lateness and absenteeism, and of talking about personal computers.  It accused others of playing games on their office computers.

The DOT decided to conduct an investigation to determine the validity of these charges.  As to plaintiff, this included an inspection of his office computer to determine whether it contained any 'non-standard' computer programs that had not been placed on his computer by the DOT.  A similar search was conducted of the computers of other employees suspected of being referenced in the Letter.

As part of its search, DOT, without plaintiff's knowledge or consent, copied the names of the files stored in plaintiff's computer.  Certain of the files on plaintiff's computer were password protected.  It appears from the Court's decision that these files were among the file names the DOT copied.

A review of these file names indicated that plaintiff had non-standard computer programs on his office computer, which suspicion was confirmed by subsequent inspections of his computer.  These inspections revealed plaintiff had a tax preparation program titled 'Pencil Pushers' stored on his computer.  Plaintiff subsequently admitted that he had used this program to print-out in his office between one and five tax returns he had prepared for individuals.  Plaintiff had been granted permission by the DOT to conduct a private tax preparation business.  He was obligated to make up any work time he spent on this activity.  Apparently, however, he was not permitted to use DOT equipment to aid in this activity.

As a result of its receipt of the Letter, and its investigation, disciplinary charges were brought against plaintiff.  Plaintiff agreed to settle these charges by pleading guilty to charges of lateness, for which he was penalized thirty days leave without pay.

Subsequently, Plaintiff was denied an annual raise, and was demoted from his position as a grade 27 employee to a grade 25 employee, with a corresponding reduction in pay.  The DOT claimed plaintiff's promotion was contingent on the ability of his predecessor to obtain a certain promotion.  When this individual was unable to secure permanent promotion to this position, he was returned to his old job, and plaintiff demoted. 

Reasonable Expectation Of Privacy

This lawsuit followed.  Plaintiff asserted that the searches of his office computer violated his right under the Fourth Amendment to be free from unreasonable governmental searches.  He also claimed that his failure to receive a raise, and his demotion, violated his right to Due Process.

The protections offered by the Fourth Amendment against unreasonable governmental searches extend to its employees.  To prevail on such a claim, an individual must establish both that he had a reasonable expectation of privacy in the place searched, and that the search was unreasonable.  According to the Court, a search "is 'reasonable' when 'the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of' its purpose."

The Court held that "Leventhal had a reasonable expectation of privacy in the contents of his office computer."  Notably, while the DOT had a policy that prohibited the use of "State equipment," including personal computers, "for personal business," it did not have a written policy that advised employees that their office computers were subject to search, or that they had no expectation of privacy therein.

Nor did the DOT regularly conduct inspections of employees' computers.  Inspections were limited to required maintenance work, or task specific access, such as obtaining a specified document from a computer. 

The computer in question was located in Leventhal's private office.  This office was equipped with a door.  Leventhal did not share his office computer with anyone.

On these facts, the Court held Leventhal had a reasonable expectation of privacy in his office computer.  In reaching this result, the Court noted that "we do not find that the DOT either had a general practice of routinely conducting searches of office computers or had placed Leventhal on notice that he should have no expectation of privacy in the contents of his office computer."

The limited inspections of his computer previously conducted by DOT personnel did not destroy his expectation of privacy.  Said the Court:

Although the DOT technical support staff had access to all computers in the DOT offices, their maintenance of these computers was normally announced and the one example in the record of an unannounced visit to Leventhal's computer was only to change the name of a server.  DOT personnel might also need, at times, to search for a document in an unattended computer, but there was no evidence that these searches were frequent, widespread, or extensive enough to constitute an atmosphere "so open to fellow employees or the public that no expectation of privacy is reasonable."  This type of infrequent and selective search for maintenance purposes or to retrieve a needed document, justified by reference to the "special needs" of employers to pursue legitimate work - related objectives, does not destroy any underlying expectation of privacy that an employee could otherwise possess in the contents of an office computer.  The Supreme Court has concluded that 'constitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer.'

Computer Searches Do Not Run Afoul Of Fourth Amendment Because They Were Reasonable

The Second Circuit nonetheless dismissed plaintiff's Fourth Amendment claims, finding that the searches at issue were reasonable.  A search is reasonable if it is both "justified at its inception" and of "appropriate scope."  The DOT's receipt of the Letter, accusing Leventhal of job-related misconduct, was sufficient to justify the search of his office computer.  Moreover, the scope of the search was appropriately limited.  According to the Court "the scope of a search will be appropriate if 'reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct.'"  The Court held that the search of plaintiff's computer to ascertain whether non-standard software was loaded therein was sufficiently limited, and reasonably related to the DOT's investigation of job related misconduct.

In reaching this result, the Court rejected Leventhal's arguments that these searches were inappropriate in light of the fact that the DOT had permitted employees to load non-standard software on their computers, and further, in light of the fact that the Letter did not accuse Leventhal of misusing his office computer.  Said the Court:

In view of the allegations of the misuse of DOT computers among other employees in the Accounting Bureau, Leventhal's alleged penchant for discussing personal computers during work hours, and Leventhal's general inattention to his duties which included, we presume, supervision of the computer use of others, we find that the searches of his computer were "reasonably related" to the DOT investigation of allegations of Leventhal's workplace misconduct.

Due Process Claims Dismissed

The Court also affirmed the dismissal of plaintiff's Due Process claims, finding he lacked the requisite property interest in either his job, or receipt of a raise, necessary to sustain such a claim.   "In order to be protected by the Constitution against the deprivation of a government benefit without due process of law, a claimant must have a 'legitimate claim of entitlement to it.'"  As Leventhal did not have such an interest in the benefits at issue he could not be heard to complain about the manner in which he lost them, from a Constitutional stand point.

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