United States District Court, S.D. New York
June 3, 2005.
SAMUEL MASON, Plaintiff,
NEW YORK CITY TRANSIT AUTHORITY, Defendant.
The opinion of the court was delivered by: DENNY CHIN, District Judge
In this employment discrimination case, plaintiff Samuel Mason
alleges that defendant New York City Transit Authority ("NYCTA")
failed to promote him because of his race and age, in violation
of federal law. Defendant moves for summary judgment dismissing
all claims. For the reasons set forth below, the motion is
A. The Facts
Construed in the light most favorable to plaintiff, the non-moving party, the facts are as follows:*fn1
Mason is an African-American man, born on February 13, 1957.
Mason received a Bachelors degree in General Studies from the
University of Michigan in 1979, a Master of Science degree in
Administration from Central Michigan University in 1993, and a
Master of Science degree in Transportation Management from
Polytechnic University in 2002. (Mason Dep. at 19; Pl. Ex. 4; Pl.
Mem. at 1). Mason is a member of the high-IQ society "Mensa,"
having scored in the top two percent of the general population in
standardized intelligence tests. (Mason Dep. at 19, 65). Mason
was hired as an Associate Staff Analyst by NYCTA on November 1,
1993,*fn2 the position that he retains today. (Def. Ex. 5;
Mason Dep. at 5). During his employment with NYCTA, Mason has
completed numerous internal training classes. (Pl. Ex. 4). Mason
has never been promoted. (Mason Dep. at 6). 2. Plaintiff's Job Performance
Mason has been moved among units within NYCTA throughout his
employment with defendant. He has been transferred at least six
times among units within the Paratransit Division. (Def. 56.1
Statement ¶¶ 2, 4-8). Mason's supervisors at his multiple
assignments universally have expressed dissatisfaction with
Mason's job performance. Beverly Morris an African-American
woman, older than Mason supervised Mason in his first
assignment as an Associate Staff Analyst in the Planning Unit of
the Paratransit Division, from 1993 through 1998, during which
time she "realized that plaintiff failed to meet work time
schedules or produce quality work without constant and careful
scrutiny and supervision . . . [and] underachieved to the extent
of just doing enough to meet the minimum standards for job
performance." (Morris Aff. ¶ 2-3). James Wilson,*fn3 head of
the Standards and Compliance Unit during Mason's various
assignments in that unit,*fn4 commented that "Mason's
overall work product was mediocre and he seemed to make
relatively straight forward jobs into major projects." (Wilson
Aff. ¶ 2).
In 2001, upon Mason's transfer back to the Planning Unit of the Paratransit Division, Anthony Spicola an Hispanic
man, older than Mason assigned Mason to two relatively simple
projects based on Mason's reputation as "unmotivated and lacking
initiative." (Spicola Aff. ¶ 2). One of the projects involved
riding Access-A-Ride vehicles and completing surveys on whether
the vehicles performed trips on time, a task usually performed by
part-time college interns. (Id.; Barnes-Chung Aff. ¶¶ 2-3). In
this study, Mason was directly supervised by Zulema Barnes-Chung,
an African-American woman. Contrary to instructions, Mason did
not complete the surveys while in the field, but instead did so
later at his desk. Mason also would disappear from the office for
an hour at a time. (Barnes-Chung Aff. ¶ 3).
Later, Mason was sent "on loan" to the Eligibility
Determination Unit to perform a task sorting and scanning
documents, a job usually performed by temporary employees.
Mason's supervisors (a Hispanic woman, 45 years old, and a Black
woman, 46 years old) "found that plaintiff frequently left the
work area" and could not be found "for periods of time"; "asked
questions over and over regarding simple tasks that were
performed successfully by unskilled temporary workers with little
[sic] if any questions asked"; and "often seemed to be idle and
gave the sense that he was not motivated."*fn5 (Mullins Aff.
¶ 2; Malave Aff. ¶ 2).
3. Plaintiff's Applications for Promotions
Plaintiff's complaint focuses on four positions for promotion
that were denied to him.
i. Job Posting # 1284*fn6
Mason applied for a promotion to the position of Principal
Transportation Planner in the Eligibility Determination Unit,
Paratransit Division, posted on December 28, 2001 as Job # 001284
(Job # 1284). (Pl. Mem. at 11; Def. 56.1 Statement ¶ 9; Def. Ex.
2). The selection panel for the position consisted of Noel
Malave, Elese Mullins, and Anthony Spicola, all three of whom had
previously supervised Mason. (Malave Aff. ¶¶ 2-3; Mullins Aff. ¶¶
2-3; Spicola Aff. ¶¶ 2-3). Malave is Hispanic and forty-five
years of age; Mullins is African-American and forty-six years
old; and Spicola is Caucasian and fifty years old. (Malave Aff. ¶
4; Mullins Aff. ¶ 4; Spicola Aff. ¶ 4). Mullins and Malave reviewed the resumes and selected the
candidates for interviews. Thirty-eight individuals applied for
this position (Pl. Mem. at 12), six of whom were granted
interviews. Four of the six candidates interviewed were
African-American; of those four, one was forty-five years of age
and two were forty-three years of age.*fn7 Mullins and
Malave did not select Mason for an interview; while neither
remembers reviewing Mason's resume, both were familiar with
Mason's work and believe they did not select him based on their
negative experiences working with him. (Mullins Aff. ¶ 3; Malave
Aff. ¶ 3).
The successful candidate was a Caucasian man, age 39, who
already worked within the Eligibility Determination Unit as an
analyst, was familiar with the responsibilities of the job, and
had previous supervisory experience with NYCTA. (Def. 56.1
Statement ¶ 9).
ii. Job Posting # 1350
On March 15, 2002, NYCTA posted a job vacancy notice for job
#001350 ("job #1350"), a Principal Transportation Planner in the
Contract Management Unit, Paratransit Division. (Def. Ex. 6). The
position "required skills in the area of contracts, procurement,
financial analyses and budget, as it involved the oversight of
outside contractors' vouchers and invoices amounting to
multi-millions of dollars." (Salerno Aff. ¶ 2). The three members
of the selection panel were all Caucasian males, older than plaintiff. (Id.). The panel selected five candidates for
interviews, all of whom showed experience in these skills, while
plaintiff's resume did not reflect such experience. (Id.). The
five candidates selected for interviews were African-American
and/or age forty or older. (Id.).
Plaintiff was not selected for an interview. The three members
of the panel at the time of the selection were "aware of
plaintiff's reputation within Paratransit management as a worker
who was not highly productive." (Id.). The successful candidate
was a Caucasian man, age forty, who "had experience in the
financial industry with spread sheets, budgets, cost control,
iii. Job Posting # 1419*fn8
On May 10, 2002, NYCTA posted a notice for job #001419 ("job
#1419"), a position as Associate City Planner I in the Operations
Planning Department. (Def. Ex. 15). The job responsibilities
included analyzing proposed permanent changes to New York City
bus routes and involved transportation planning at a high level. (Id.). The job required a B.A. degree and at
least three years of full-time experience in city planning, up to
two years of which could be substituted by an advanced degree in
city planning or a law degree. (Id.).
Theodore Orosz Caucasian, age fifty-two and Buckley Young
Asian, age forty-one selected fifteen individuals for
interviews, from ninety resumes received. (Def. 56.1 Statement ¶
13). Mason was selected for an interview, based on his
qualifications as indicated by his resume, but was not offered
the position. (Pl. Mem. at 13; Orosz Aff. ¶ 2). Orosz and Yung
ranked Mason fourteenth out of fifteen candidates interviewed;
given that most internal candidates were ranked in the upper half
of the group, Orosz and Yung characterized Mason's ranking as
indicating "a very lackluster interview." (Orosz Aff. ¶ 3). They
found that plaintiff "had not managed any transportation planning
projects and had little, if any, relevant planning experience or
experience dealing with community interest groups." (Yung Aff. ¶
The successful candidate was an Asian woman, age 30, who had
"four years of . . . transportation planning experience that
included managing, directing and administrating actual planning
projects, preparing and analyzing budgets, [and] working with
community board and outside consultants." (Def. 56.1 Statement ¶
13). She was the only candidate to present a CD portfolio of her
projects. (Orosz Aff. ¶ 3; Yung Aff. ¶ 3). iv. Job Posting # 1546
On September 20, 2002, NYCTA posted a vacancy notice for job
#001546 ("job #1546"), Principal Transportation Planner in the
Planning Unit of the Paratransit Division. (Def. Ex. 10). The
position involved "complex tasks including . . . researching
different types of Intelligent Transportation Systems such as
Global Position Satellite and Radio Frequency based Automatic
Vehicle Location and Monitoring (AVLM) systems)" and reported to
the Director of the Planning Unit. (Def. Ex. 12).
The selection panel was comprised of Anthony Spicola, Noel
Malave, and Marcia Thompson. Spicola was the Director of the
Planning Unit at the time, and the person to whom the successful
candidate would report directly. Spicola reviewed the resumes and
selected the candidates for interview. Sixteen candidates were
selected for interviews, including an African-American man, and
two Asian candidates over the age of forty.*fn9 (Def. 56.1
Statement ¶ 11). Spicola specifically recalls that Mason's resume
and cover letter contained typographical errors. Even had the
resume and cover letter not contained errors, Spicola would not
have considered Mason's application, based on his own experience
of supervising Mason and "negative perspective of plaintiff as a
worker." (Spicola Aff. ¶ 3).
B. Procedural History
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") on April 14,
2003. (Def. 56.1 Statement ¶ 14; Def. Ex. 6). The EEOC dismissed
the complaint and issued a "Right to Sue" letter on September 22,
2003. (Pl. Compl. Ex. 2).
Plaintiff's complaint in the instant action was received by the
Court's Pro Se Office on December 10, 2003; the complaint then
was accepted for filing by the Clerk's Office and docketed on
January 23, 2004. The complaint alleges violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
as amended ("Title VII"), with respect to Mason's race, and the
Age Discrimination in Employment Act, 29 U.S.C. § 629 et seq.
(the "ADEA"). The parties engaged in discovery and the instant
motion for summary judgment followed. For the reasons set forth
below, defendant's motion for summary judgment dismissing all
claims is granted.
A. Summary Judgment Standard
The standards governing motions for summary judgment are
well-settled. A court may grant summary judgment only where there
is no genuine issue of material fact and the moving party
therefore is entitled to judgment as a matter of law. See Fed
R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the court's
task is not to "weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). There must be sufficient evidence in the record to support a jury
verdict in the nonmoving party's favor to create an issue for
trial. See id.
To defeat a motion for summary judgment, the nonmoving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586.
As the Supreme Court stated in Anderson, "[i]f the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50
(citations omitted). The nonmoving party may not rest upon mere
conclusory allegations or denials, but must set forth "concrete
particulars" showing that a trial is needed. Nat'l Union Fire
Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989)
(quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69,
77 (2d Cir. 1984) (internal quotations omitted)). Accordingly, it
is insufficient for a party opposing summary judgment "merely to
assert a conclusion without supplying supporting arguments or
facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co.,
77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
B. Failure to Promote Claim
1. Applicable Law
The "ultimate issue" in any employment discrimination case is
whether the plaintiff has met his or her burden of proving that
the adverse employment decision was motivated at least in part by
an "impermissible reason," i.e., that there was discriminatory
intent. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146 (2000); Fields v. N.Y. State Office of
Mental Retardation & Developmental Disabilities, 115 F.3d 116,
119 (2d Cir. 1997). Cases brought under Title VII and the ADEA
generally are analyzed pursuant to the three-step test set forth
in McDonnell Douglas and refined in later cases. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Stratton v.
Dep't for the Aging, 132 F.3d 869, 879 (2d Cir. 1997) (ADEA);
see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506;
Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d
With respect to a discriminatory failure to promote claim, a
plaintiff must first establish a prima facie case of unlawful
discrimination by showing that (1) he is a member of a protected
category, (2) he applied for an available position, (3) he was
qualified for the position, and (4) he was rejected under
circumstances that give rise to an inference of discrimination.
Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000);
De La Cruz v. N.Y. City Human Resources Admin. Dep't of Soc.
Servs., 82 F.3d 16, 20 (2d Cir. 1996). "An inference of
discrimination may arise if the position remains open and the
employer continues to seek applicants of the plaintiff's
qualifications ? or if the position was filled by someone not a
member of plaintiff's protected class." Gomez v. Pellicone,
986 F. Supp. 220, 228 (S.D.N.Y. 1997) (citing McDonnell Douglas,
411 U.S. at 802; De La Cruz, 82 F.3d at 20).
Second, if the plaintiff establishes a prima facie case, a
rebuttable presumption of discrimination arises, and the burden then shifts to the defendant to "articulate a legitimate,
clear, specific and nondiscriminatory reason" for the employment
decision. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.
1995); see also Reeves, 530 U.S. at 143.
Third, if the employer articulates a nondiscriminatory reason
for its actions, the presumption of discrimination is rebutted
and it "simply drops out of the picture." St. Mary's Honor
Ctr., 509 U.S. at 511 (citation omitted). The burden then shifts
back to the plaintiff to show, without the benefit of any
presumptions, that more likely than not the employer's decision
was motivated, at least in part, by a discriminatory reason.
See id. at 515-16; Lanier v. I.B.M. Corp.,
319 F. Supp. 2d 374 (S.D.N.Y. 2004).
To meet this burden, the plaintiff may rely on evidence
presented to establish his prima facie case as well as
additional evidence. Such additional evidence may include direct
or circumstantial evidence of discrimination. Desert Palace,
Inc. v. Costa, 539 U.S. 90, 99-101 (2003); Harris v. City of
New York, No. 03 Civ. 6167 (DLC), 2004 U.S. Dist. LEXIS 25496 at
*6 (S.D.N.Y. Dec. 22, 2004). It is not sufficient, however, for a
plaintiff merely to show that he satisfies "McDonnell Douglas's
minimal requirements of a prima facie case" and to put
forward "evidence from which a factfinder could find that the
employer's explanation . . . was false." James v. N.Y. Racing
Ass'n, 233 F.3d 149, 153 (2d Cir. 2000). Instead, the key is
whether there is sufficient evidence in the record from which a
reasonable trier of fact could find in favor of plaintiff on the ultimate
issue, that is, whether the record contains sufficient evidence
to support an inference of discrimination on the basis of race,
age, or some other impermissible factor. See id. at 157;
Connell v. Consolidated Edison Co. of N.Y., Inc.,
109 F. Supp. 2d 202, 207-08 (S.D.N.Y. 2000).
As the Second Circuit observed in James, "the way to tell
whether a plaintiff's case is sufficient to sustain a verdict is
to analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must
prove particularly discrimination." 233 F.3d at 157; see
Lapsley v. Columbia Univ., 999 F. Supp. 506, 513-16 (S.D.N.Y.
1998) (advocating elimination of McDonnell Douglas test in
favor of simplified approach focusing on ultimate issue of
whether sufficient evidence exists to permit jury to find
discrimination); see also Norton v. Sam's Club,
145 F.3d 114, 118 (2d Cir. 1998) ("The thick accretion of cases
interpreting this burden-shifting framework should not obscure
the simple principle that lies at the core of anti-discrimination
cases. In these, as in most other cases, the plaintiff has the
ultimate burden of persuasion.").
At the outset, I assume that plaintiff has made out the prima
facie case required by McDonnell Douglas. Defendant has
articulated a legitimate, nondiscriminatory reason for its
failure to promote plaintiff to each of the four positions to which he applied. Defendant contends that Mason was not
interviewed for three of the positions because the individuals
involved in selection were familiar with Mason's work performance
and reputation as an unmotivated worker, and that Mason was not
offered the fourth position for which he was interviewed because
he did not perform well in the interview and lacked required
experience. The successful candidates, NYCTA argues, were more
qualified than Mason.
Hence, I proceed directly to the ultimate question of whether
plaintiff has presented sufficient evidence from which a
reasonable jury could find discrimination. I do so by evaluating
first plaintiff's evidence, then defendant's evidence, and
finally the record as a whole, keeping in mind the elusiveness of
proof of discrimination and the principle that the jury is
"entitled to view the evidence as a whole." Stern,
131 F.3d at 314; see also Siano v. Haber, 40 F. Supp. 2d 516, 520
(S.D.N.Y. 1999), aff'd mem., 201 F.3d 432 (2d Cir. 1999).
i. Plaintiff's Evidence
Plaintiff offers the following evidence in support of his
claims for discrimination on the basis of his race and age:
First, Mason is African-American and over the age of forty.
Second, Mason has never been promoted, despite his degrees and
years of experience with NYCTA.
Third, of the four positions to which Mason applied and are the
subject of the instant case, all were filled by a candidate who was either younger than forty or not
African-American.*fn10 (Def. 56.1 Statement ¶¶ 9, 10, 13;
Def. Ex. 11).
Mason alleges NYCTA "has a history with this type of
discrimination" (Pl. Mem. at 2), pointing to the $3.5 million
settlement of a discrimination suit by African-American employees
with Metro-North Railroad. (Pl. Ex. 3). While Metro-North and
NYCTA both operate under the umbrella of the Metropolitan Transit
Authority ("MTA"), they are separate and distinct entities. N.Y.
Urban League v. New York, 71 F.3d 1031, 1033 (2d Cir. 1995)
("NYCTA is a legally separate public benefit corporation
affiliated with the MTA, while the LIRR and Metro-North are
wholly owned subsidiaries of the MTA" (citation omitted)). NYCTA
makes its own hiring decisions. N.Y. Pub. Auth. § 1204(6). Mason
makes no showing that the hiring decisions of the two agencies
are in any way related; therefore, even if the settlement could
somehow serve as some evidence of discrimination by Metro-North,
any alleged discrimination by Metro-North does not indicate
discriminatory practices at NYCTA.
Mason also puts forth as evidence the fact that African-American employees within the Paratransit Division of
NYCTA on average earn lower salaries than Caucasian employees of
the same division. (Pl. Ex. 11). Defendant does not dispute the
calculations plaintiff submitted in support of this contention,
instead arguing that salary differentials are irrelevant to a
failure to promote claim. I disagree: race-based salary
differentials surely can be some evidence of a practice of
discriminatory treatment. In this case, however, the
differentials fail to serve as evidence of discrimination, as
Mason has not shown that the differentials are based on race.
Plaintiff does not control for seniority, rank, or other possible
neutral factors in determining salary. (See Pl. Ex. 11).
Mason's own exhibit reflects that some Caucasian employees in the
same position as Mason earned a salary equal to or lower than
his. (Pl. Ex. 10). Therefore, the mere fact that, on average, the
salaries of Caucasian employees was higher than those of
African-American employees in the Paratransit Division is not
evidence of discrimination.
Finally, Mason submits a sworn statement that he contends
"testif[ies] to the discriminatory environment plaintiff was
subjected to." (Pl. Mem. at 10). The statement is given by
Izuhunwa Aigbogun, a former college intern with NYCTA. (Aigbogun
Aff.; Barnes-Chung Aff. ¶ 5). Aigbogun asserts that he "[could]
only postulate that the only reason [Mason] has not been afforded
promotional opportunities is the color of his skin or the fact
that he is an African[-]American Male." (Aigbogun Aff.). This is simply a conclusory allegation, unsupported by any facts in
the declarant's statement. That Mason's supervisor "instructed
[Aigbogun] not to share work[-]related or any information with
Mr. Mason" similarly fails to serve as evidence of
ii. Defendant's Evidence
Defendant puts forth the following evidence in support of its
motion for summary judgment and against an inference of
First, Mason's supervisors universally have been disappointed
with his job performance, characterizing Mason as "unmotivated"
and "idle," needing "constant and careful scrutiny and
supervision," and producing mediocre work.
Second, the selection committees for the three positions to
which Mason applied but was denied an interview consisted of
individuals who had either directly supervised Mason and
experienced his work, or who were familiar with Mason's
reputation as a worker. The committee members based their
decisions not to interview Mason on their negative experiences
and impressions of him as a worker.
Third, Mason was granted an interview by individuals unfamiliar
with his job performance, who based on his resume deemed him
qualified. Upon interviewing Mason, they found him to have
performed poorly in the interview and that he lacked necessary
Fourth, individuals in Mason's protected class minorities and individuals age forty or older were interviewed
for each of the four positions.
Fifth, all the individuals responsible for selecting candidates
for interviews were minorities and/or age forty or older.
Sixth, the positions were filled by individuals more qualified
that Mason. Job #1284 (Principal Transportation Planner,
Eligibility Determination Unit) was filled by an internal
candidate from within the Eligibility Determination Unit who was
already familiar with the responsibilities of that position and
had previous supervisory experience with NYCTA. Job #1350
(Principal Transportation Planner, Contract Management Unit) was
filled by a candidate who possessed the required experience with
financial analysis and budgets, while Mason did not. (See Def.
Ex. 9, plaintiff's resume). Job #1419 (Associate City Planner I,
Operations Planning Department) was filled by a candidate with
years of transportation planning experience who impressed the
interviewers with her CD presentation of her portfolio of
projects, and who received highly positive references from
highly-regarded sources. (Yung Aff. ¶ 3).*fn11
iii. The Record As a Whole
Considering the evidence as a whole, reading pro se plaintiff's claims as liberally as possible, and resolving inferences in
plaintiff's favor, I conclude that no reasonable jury could find that plaintiff's
race or age were factors in defendant's failure to promote him.
Mason is obligated to present sufficient evidence to support a finding by
a reasonable jury. See Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2nd Cir. 1996) (to defeat summary judgement, plaintiff is
obligated not just to produce "some" evidence, but must produce sufficient
evidence to support a rational jury verdict in his favor). Plaintiff offers
no evidence of discrimination on the basis of age or race other than (1) he
is African-American and over the age of forty, (2) he has never been promoted,
and (3) the positions to which he applied were filled by candidates younger
than him or not African-American. This evidence, by itself, would not support
a jury finding of age or race discrimination.
Indeed, while defendant has put forth evidence that (1) its supervisors
universally considered plaintiff an unproductive and unmotivated employee,
(2) it interviewed multiple candidates who were members of plaintiff's
protected classes, (3) its selection committees consisted of individuals who
were members of plaintiff's protected classes, and (4) the successful
candidates were more qualified than Mason, plaintiff has produced no evidence
that defendant's proffered reasons for not promoting him were pretextual
based on discriminatory intent. Mason puts forth no evidence that disputes his supervisors' assessments of
the quality of his work. The Court accepts plaintiff's contention
that he is well-educated and a member of Mensa; that alone,
however, does not raise a triable issue of fact as to defendant's
reasons for not promoting plaintiff. Moreover, "plaintiff must
identify affirmative evidence upon which a fact-finder could rely
in concluding that he carried his burden of proving . . .
defendant's illicit motive." Harris v. City of New York, No. 03
Civ. 6167 (DLC), 2004 U.S. Dist. LEXIS 25496 at *6 (S.D.N.Y. Dec.
22, 2004). Mason has failed to do so. Consequently, on the record
before the Court, no reasonable jury could find that plaintiff
was discriminated against on the basis of his age or race.
Accordingly, defendants' motion for summary judgment is granted.
For the reasons set forth above, defendant's motion for summary
judgment is granted as to all claims. Mason's complaint is
dismissed with prejudice and without costs. The Clerk of the
Court shall enter judgment accordingly and close this case.