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United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Anderson

United States District Court, W.D. Texas, San Antonio Division

June 15, 2018

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, ET AL., Plaintiffs,
v.
JARVIS ANDERSON, ET AL., Defendants.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

         On this date, the Court considered Defendants' Motion to Strike Allegations (docket no. 7) and Defendants' Motion to Dismiss (docket no. 8), and the responses and replies thereto.

         Background

         Plaintiffs United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”), Bexar County Probation Officers Association (“BCPOA”), United Steelworkers Local Union 9528, and Sergio Castilleja filed this action against Defendants Jarvis Anderson, Brian Brady, and Bexar County Community Supervision and Corrections Department (“CSCD”), asserting primarily violations of their First Amendment rights to free speech and association in relation to union activity, as well as various state law claims.

         Plaintiffs have submitted a lengthy 67-page Complaint covering events beginning in 2006. The Court summarizes the allegations, presuming them to be true at this stage. According to the Complaint, Plaintiff Castilleja formed, joined, and/or assisted in organizing the Union[1] at the CSCD for the mutual aid and protection of himself and his fellow probation officers and other employees of the CSCD, and he has been prominent in organizing CSCD employees into the Union and advocating on behalf of the Union and fellow employees. Compl. ¶ 8. Plaintiff Castilleja served as a Steward for the Union from 2007 until January 28, 2016, when he was elected president of Bexar County Probation Officers Association (BCPOA) by his fellow Union members. Id. ¶ 9.

         On December 13, 2006, Castilleja along with other spokespersons for the labor organizing effort presented a petition and requested a meeting with the CSCD Director at the time, William Fitzgerald, to discuss grievances held in common by a substantial number of employees concerning working conditions. Because Fitzgerald did not meet with them and then announced that all employees who wished to continue working had to reapply for their jobs and attend retention interviews, fourteen CSCD employees, including Castilleja and Sheri Simonelli, sued Fitzgerald, alleging unlawful retaliation. Fitzgerald removed the lawsuit to this Court, where it was docketed as Simonelli v. Fitzgerald, SA-07-CA-360-XR.

         Around the same time, the USW issued a charter to the CSCD employees as USW Local Union 9528, and the members adopted the name Bexar County Probation Officers Association (BCPOA). Simonelli was elected to serve as president. In 2008, she was terminated after sending an email from her private email address to her Union members and issuing a press release regarding a drug testing controversy at CSCD. She filed a lawsuit, docketed as 08-CV-648-XR, and it was consolidated with 07-CA-360-XR. Regarding their Complaint in this case, Plaintiffs state that their “purpose in referencing No. 07-CA-360-XR and 08-CV-00648-XR is not to rehash previous litigation, but rather to contribute to the historical context of the Bexar County CSCD, and Plaintiffs Castilleja's and Union's associational and speech activities in relation thereto, as ongoing matters of public concern.” Compl. at 10 n.1.

         Fitzgerald resigned in January 2010, and Defendant Jarvis Anderson was chosen by the Bexar County judges as the new CSCD Director. In May 2010, the consolidated actions were settled, and Simonelli has returned to her job as a probation officer.

         Plaintiffs allege that Defendant Anderson removed language concerning protections for union membership from the CSCD Administrative Manual to prevent employees from knowing about their statutory rights. Plaintiffs allege that in the summer of 2011, CSCD created a “Non-Disclosure Agreement” and required employees to sign it. Counsel for BCPOA sent a letter objecting to the agreement as interfering with the right of employees to free speech to comment on matters of public concern. Anderson responded that CSCD honored and respected the First Amendment rights of employees and would not unlawfully infringe on them or coerce employees to give up those rights.

         In December 2012, Simonelli was promoted to a first-line supervisory position. She remained a member and president of the BCPOA, but ceased representing individual employees in grievances and disciplinary appeals. As a result, Castilleja's responsibility to do so increased dramatically, and he represented employees in more grievances and appeals than any other BCPOA representative. Plaintiffs allege that Castilleja's frequent and vigorous representation of fellow employees on behalf of the Union incurred the hostility of Defendant Anderson.

         At their monthly membership meeting in February 2014, the members of BCPOA voted no-confidence in Defendant Anderson's leadership of CSCD. In July 2014, Plaintiff Union submitted a petition on behalf of the Union to the Bexar County Administrative Judges. Plaintiffs allege that “Anderson immediately engaged in vicious retaliation.” Compl. ¶ 40. Plaintiffs allege that, within a few days after the Union delivered its petition, Anderson summoned BCPOA president Simonelli and interrogated her in a coercive manner over spurious alleged work performance and conduct issues, falsely accusing her of policy violations in a manner calculated to drive home a clear message of hostility toward her union activities and speech in her leadership of BCPOA. Anderson further threatened her with termination. Anderson also berated Vaughn so severely and viciously that it contributed to her hospitalization shortly thereafter, and subjected Castilleja to a coercive and threatening interrogation over false accusations. The Union's legal counsel sent another letter to Anderson addressing his alleged retaliatory actions, and Anderson's conduct ceased.

         Plaintiffs allege that in December 2014, as part of a reorganization, Anderson forced Castilleja to become a DWI officer in Central 3 Region Office, in disregard of his seniority and his preference, and this was a display of Anderson's hostility toward Castilleja because of his vigorous Union activities.

         In 2015, BCPOA invited Anderson to meet with the Union members to hear and discuss their concerns. Anderson refused to meet with them. After Anderson refused, the members of BCPOA, at their November 19, 2015 membership meeting conducted away from CSCD premises and after work hours, again voted no-confidence in Anderson's leadership of the CSCD. The members of BCPOA endorsed a no-confidence petition with the intention of obtaining signatures and submitting the petition to the Bexar County district and county court judges who hear criminal cases to persuade the judges in their administrative capacities to remove Anderson from his position as CSCD Director. The petition listed 18 topics, several of which the Union felt were “of serious and legitimate public concern.”

         Plaintiffs allege that one of the serious concerns with Anderson's leadership articulated in the no-confidence petition was that probation officers with DWI caseloads were subjected to more rigorous performance scrutiny and audits of their cases than other officers. Other topics included in the petition asserted to be of public concern were: (1) “The Ever Changing Policies & Procedures of the Corrections Software Solutions”; (2) “The Frequent Transferring of Cases Based on Zip Codes & Defendants Lost in Transition”; (3) “The Unethical Activities & Behaviors of those in charge at the Residential Facilities”; (4) “Refusing to Meet with the Probation Officer's Association”; and (5) “The Large Disconnect between the Chief, the Judges, and the Employees.” The “unethical activities” referenced concerns that Applewhite Road in-patient rehabilitation facilities were keeping probationers too long, past their judicially ordered terms of confinement. Complaint ¶¶ 58-59. The Complaint alleges that “[t]he CSCD adhering to judicial orders for the treatment of criminal defendants serving terms of probation supervised by the Defendant CSCD and Defendant Anderson is inherently a matter of public concern.” Id. ¶ 59.[2] Plaintiffs allege that circulating the petition and its contents were not part of their ordinary job duties as CSCD employees. Plaintiffs further allege that Anderson knew of the vote to prepare the no-confidence petition.

         In November 2015, Simonelli resigned as president of BCPOA, allegedly over stress that Anderson would retaliate against her. At that time, Castilleja was stationed at the Central 3 Region Office, and his supervisor John Escalante gave him a satisfactory performance review and “spoke glowingly about” his performance in November 2015. Castilleja was elected to fill the position of BCPOA president in January 2016. The next day, Anderson approached Castilleja in the CSCD workplace and tried to persuade Castilleja to put a stop to the no-confidence petition. Anderson asked Castilleja “to start on a fresh slate” regarding labor relations between Anderson and the Union. Castilleja responded that he would move forward with the petition, and Plaintiffs allege that this angered Anderson and he decided to retaliate by making an example of Castilleja. Anderson allegedly had telephone conversations with Simonelli in February and March 2016 in which he threatened to “get” Castilleja.

         Plaintiffs allege that Anderson sought a pretext to terminate Castilleja's employment, both as an act of vengeance against Castilleja and for the purpose of deterring and coercing employees from supporting the Union's no-confidence petition by making an example of Castilleja. They allege that Defendant Brian Brady, Deputy Director of the CSCD, conspired with Anderson to frame up such a pretext, and they jointly decided to transfer Castilleja to another work unit in order to create such a pretext. Specifically, on February 11, 2016, two weeks after being elected president of BCPOA and declining Anderson's request to stop the no-confidence petition, Castilleja was abruptly transferred to the Northwest 5 Region office, under the supervision of Joel Merino. Transferring an employee to another unit may trigger an audit of the employee's case work in the employee's old unit under CSCD procedures, and Plaintiffs contend that this was the reason Anderson transferred him. Castilleja had previously requested such a transfer, but had been denied.

         Brady allegedly approached Castilleja's prior supervisor Escalante and directed him to help gather case files that Castilleja had worked on while under Escalante's supervision, in order to find examples of poor performance. Anderson and Brady further pursued their plan by auditing the cases Castilleja handled under supervisor Merino after Castilleja's transfer to the Northwest 5 Region office. Anderson and Brady began the audit of Castilleja's case work under supervisor Merino about April 2016, without informing Merino. Merino and the assistant supervisor were never asked about Castilleja's work performance during the review “because [Anderson and Brady] were carrying out a deliberate plan to terminate Plaintiff Castilleja's employment in an act of retaliation and did not care to know any facts that might be presented to them by the supervisor and assistant supervisor who worked with and supervised Plaintiff Castilleja day in and day out.” Compl. ¶ 85.

         On August 5, 2016, Anderson presented Castilleja with a “notice of proposed adverse action” to discharge him from the CSCD. On that date, Anderson caused Castilleja to be removed from the CSCD workplace premises and placed on administrative suspension without pay. Anderson alleged that Castilleja had committed negligence and/or violated department policies in his handling of 15 probationer cases over a nearly two-year time span in which he supervised numerous probationers. Plaintiffs assert this was inconsistent with Castilleja's performance reviews. They allege that when supervisor Merino informed Brady of his disagreement with taking adverse action against Castilleja over his work performance, Brady told Merino that the adverse action was not based on Castilleja's case handling, but on his conducting Union business on work time. But at a Texas Workforce Commission hearing on May 3, 2017, Brady testified under oath as a spokesman for the CSCD that the alleged case handling infractions were the sole reason for the discharge. Plaintiffs allege that any of the alleged errors identified are “routine and common among probation officers due to the heavy workload carried by Bexar County CSCD probation officers caused by inadequate staffing, inadequate funding, and Defendant Anderson's poor leadership.” Compl. ¶ 102. Plaintiffs make additional allegations to show that the adverse action was based on pretext.

         On November 9, 2016, Castilleja submitted the no-confidence petition to the Bexar County judges with an explanatory cover letter. The petition included approximately 100 signatures of a combination of CSCD employees and non-employees. Castilleja also gave a copy to Anderson. The judges took the petition under consideration, and while they were considering the petition, a counter-petition signed by CSCD employees expressing support for Anderson was submitted.

         In response to the August 6, 2016 notice of adverse action, Castilleja had requested a procedure that is termed an “appeal hearing” in the CSCD Administrative Manual. The hearing was conducted as a meeting with Anderson on November 15, 2016. Castilleja's supervisor Merino participated and informed Anderson of his disagreement with the proposal to discharge Castilleja. After the meeting, Anderson advised Castilleja that he would take the information provided under consideration and would inform Castilleja of his decision later. Plaintiffs allege that Anderson wanted more time to frame additional unfavorable allegations against Castilleja to attempt to induce Castilleja to resign or retire, so that Anderson could avoid a judicial challenge. In December 2016, Anderson communicated to Castilleja's counsel in writing that he had conducted an audit and “quantitative analysis” of 94 cases handled by Castilleja and that Castilleja had allegedly committed policy infractions in a majority of them. Anderson stated he would allow Castilleja to resign or retire in lieu of being discharged.

         In late December 2016, the Bexar County judges voted to retain Anderson as director. On January 3, 2017, Anderson notified Castilleja that his “final decision” was to terminate Castilleja's employment. Anderson stated that the adverse action was based only on the originally identified cases, and thus he would not grant Plaintiff Castilleja an opportunity to respond to the December 2016 “quantitative analysis” allegations. Plaintiffs complain that Castilleja has never been afforded an opportunity to clear his name with respect to these allegations.

         Plaintiffs USW and BCPOA allege that they suffered injury from the Defendants' actionable conduct, through loss of support and membership among CSCD employees due to the chilling effects of the Defendants' retaliatory discharge of the BCPOA president, Castilleja. They allege that, as a result of the retaliatory discharge and the chilling effects it created, membership in the BCPOA and USW declined by approximately 30% or more, resulting in lost membership dues. They further allege that the chilling effect created by Anderson's retaliatory discharge made Union members uneasy about asking other employees to join the Union and uncomfortable about soliciting further signatures on the no-confidence petition and made employees, including Union members, afraid to sign the petition.

         Plaintiffs further allege that Anderson moved Castilleja's former supervisor Merino to an inconvenient work location and threatened his wife with adverse employment action, and that Anderson has attempted to coerce Merino from testifying on behalf of Castilleja and to coercively deter other employees from testifying.

         Plaintiffs allege their causes of action in eighteen paragraphs. In Paragraphs 157 to 160, Castilleja sues Anderson (¶¶ 157-158), Brady (¶ 160), and the CSCD (¶ 159) under § 1983 for retaliatory discharge in violation of the First and Fourteenth Amendments, seeking compensatory and injunctive relief. Castilleja sues Anderson in his individual and official capacities, and Brady in his individual capacity. In Paragraph 161, Castilleja sues Anderson and Brady individually for conspiracy under § 1985.

         In Paragraph 162, Castilleja alleges that Anderson (in his individual and official capacities) deprived him of a liberty interest without due process in violation of the Fourteenth Amendment by refusing to permit him to be heard in response to the allegations of improper case handling based on the alleged audit presented in December 2016.

         In Paragraphs 163 through 166, Castilleja sues Anderson and Brady in their individual and official capacities for injunctive relief for violations of Article I, § 8 and Article I, § 27 of the Texas Constitution. In Paragraphs 167 through 169, Castilleja sues Anderson and Brady in their individual capacities for compensatory damages for violations of § 101.301 of the Texas Labor Code.

         In Paragraphs 170 to 173, the Union asserts claims against Anderson in his individual and official capacities for violations of the right to freedom of association and for violations of due process and equal protection (under § 1983), violations of the Texas Government Code § 617.004, Texas Labor Code §§ 101.001 and 101. 301, and Article I, § 3 of the Texas Constitution and for violations of their members' right to association.

         And in Paragraph 174, all Plaintiffs sue for a violation of the Fourteenth Amendment, seeking injunctive relief against Anderson (capacity not specified) for attempting to coerce a material witness from testifying on behalf of Plaintiffs in this action.

         Defendants have filed a motion to strike allegations in the Complaint relating to the prior litigation, and have also filed a motion to dismiss most of Plaintiffs' claims on various grounds.

         Analysis

         Defendants move to dismiss most of Castilleja's claims and all the Union's claims. Plaintiffs have conceded some claims and have responded to some, but not all, of the remaining arguments in the motion to dismiss. The Court conducted a status conference and hearing on the pending motions on May 30, at which time Plaintiffs were asked to clarify whether they intended to abandon the claims on which they had failed to respond. Plaintiffs conceded the § 1985 conspiracy claim and the substantive due process name clearing claim, but expressed a desire to pursue all remaining claims.

         1. Limitations and Motion to Strike Paragraphs 7 through 29

         Defendants assert that no claims may be asserted for actions occurring before December 7, 2015 because they are barred by limitations. Defendants further assert that the allegations contained in ¶¶ 7 to 29 should be stricken because they involve prior litigation that has been settled, and Plaintiffs are using these allegations to improperly expand the scope of this case, including discovery. Plaintiffs state that these allegations are included merely for historical context and that they “do not seek judicial relief in this action for events that predate the two-year point prior to filing this suit.” Docket no. 19 at 14. Plaintiffs state that they have pled prior events for the purpose of corroborating Anderson's motive of animus toward Castilleja's and other employees' Union activities, demonstrating the background and history of significant public concern in the subjects of labor relations at the Bexar County CSCD and the governance and management of the CSCD, evidencing the pretextual nature of Castilleja's discharge, and demonstrating Anderson's clear awareness of the Plaintiffs' clearly established First Amendment rights. Given Plaintiffs' concession on limitations and the understanding that discovery will be limited to a reasonable time period, the motion to strike is denied.

         2. Eleventh Amendment Immunity and Claims Seeking Injunctive Relief

         Defendant CSCD asserts Eleventh Amendment immunity to suit for all claims, federal and state, except for those permitted under the doctrine of Ex Parte Young. Docket no. 8 at 5 & n.13. Defendants assert that all claims against the CSCD are barred by Eleventh Amendment immunity because a county adult probation department is an arm of the state. See, e.g., Clark v. Tarrant Cty., Tex., 798 F.2d 736, 745 (5th Cir. 1986) (“While no single factor conclusively shows that Adult Probation is an arm of the state, viewing all the factors as a whole, we hold that [Tarrant County] Adult Probation is an arm of the state within the meaning of the Eleventh Amendment, and that the federal courts lack subject matter jurisdiction over appellants' section 1983 claims against it.”).[3] Plaintiffs respond that, “[u]pon good faith consideration of Defendants' motion, Plaintiffs agree that the CSCD is an arm of the State of Texas, which therefore cannot be sued in this action, even for prospective equitable relief” and “Plaintiffs consent to the dismissal of the CSCD.” Docket no. 19 at 17. The only claim brought directly against the CSCD is in ¶ 159, which seeks injunctive relief against CSCD for violation of federal constitutional rights. Accordingly, this claim against CSCD is dismissed.

         Plaintiffs also bring a number of claims against CSCD in the form of official-capacity claims against Anderson and Brady. It is well established under both federal and Texas law that claims against an official in his official capacity are the same as claims against the government entity itself. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007) (“It is fundamental that a suit against a state official is merely ‘another way of pleading an action against the entity of which [the official] is an agent.'”) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Defendants assert Eleventh Amendment immunity from Plaintiffs' official-capacity federal claims seeking retroactive injunctive relief, recognizing that Plaintiffs may be able to pursue prospective injunctive relief under the doctrine of Ex Parte Young. They assert that “retroactive injunctive relief” in the form of restored benefits is not recoverable in an official-capacity claim against Anderson because that claim is barred by Eleventh Amendment immunity.[4] Defendants also assert Eleventh Amendment immunity with regard to Plaintiff's claims under the Texas Government Code, Texas Labor Code, and Texas Constitution, which are asserted against CSCD via official-capacity claims against Anderson and Brady. Docket no. 8 at 5 & n.13. Defendants contend that “[t]his jurisdictional bar applies regardless of the nature of the relief sought.” Id. at 5 & n.15.

         Plaintiffs respond that they agree “they should not seek injunctive relief against Anderson and Brady in their individual capacities, ” but “point out that such relief is sought against Anderson in his official capacity.” Docket no. 19 at 17. Thus, any claim seeking injunctive relief against Anderson and Brady individually (including in ¶¶ 158, 163, 164, 165, 166, 170, 171, 172, 173, & 174) is dismissed. Because it does not appear that Plaintiffs are voluntarily dismissing any of their official-capacity claims for injunctive relief, the Court will consider Defendant's assertion of Eleventh Amendment immunity for these claims, which include claims against Anderson and Brady in their official capacities under both federal and state law.

         The Eleventh Amendment generally provides immunity to a State against suits in federal court by a citizen of the State against the State or a state agency or department. Saahir v. Estelle, 47 F.3d 758, 760 (5th Cir. 1995). A suit in which relief is sought nominally against a state official is in fact against the sovereign if the decree would operate against the latter such that the state is the real, substantial party in interest, regardless of whether the suit seeks damages or injunctive relief. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984) (noting that suit against state officials is against the sovereign if the decree would operate against the latter and the jurisdictional bar applies regardless of the nature of the relief sought); Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is that a suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.”).

         In Ex Parte Young, the Supreme Court recognized an exception to Eleventh Amendment immunity to vindicate federal rights, by allowing claims for prospective injunctive relief against state actors in their official capacities.[5] For Ex Parte Young to apply, the plaintiff must (1) allege a violation of federal law; (2) bring a claim against individual persons in their official capacities as agents of the State, and (3) seek declaratory or injunctive relief in nature and prospective in effect. Fontenot v. McCraw, 777 F.3d 741, 752 (5th Cir. 2015); Simmang v. Tex. Bd. of Law Examiners, 346 F.Supp.2d 874, 886 (W.D. Tex. 2004). Under Ex Parte Young, a federal court may award an injunction that governs the official's future conduct, but not one that awards retroactive monetary relief. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984). For Ex Parte Young purposes, retroactive relief is that which compensates a plaintiff, through monetary damages or restitution, for the defendant state official's past breach of a legal duty or past violation of federal law. Simmang, 346 F.Supp.2d at 887.

         With regard to their federal claims, Castilleja and the Union both assert claims against Anderson in his official capacity seeking injunctive relief. See Compl. ¶ 158 (First Amendment), ¶ 170 (First Amendment), ¶ 172 (Fourteenth Amendment); ¶ 174 (Fourteenth Amendment). In Paragraph 158, Castilleja seeks reinstatement to his position, “together with all rights, privileges, pay, emoluments and benefits of employment enjoyed by him prior to his unconstitutional and unlawful discharge, ” to include “restoration of service credit and all benefits such as but not limited to retirement credit, accrued annual leave and sick leave, retroactive to August 5, 2016, as if he had never been suspended or subsequently discharged, and at the pay rate he would have achieved by the date [of] reinstatement as if he had never been suspended or discharged.” Compl. ¶ 158.

         The Fifth Circuit has held that official-capacity claims under Ex Parte Young are an “appropriate vehicle for pursing reinstatement to a previous job position.” Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 322 (5th Cir. 2008); see also Meeks v. Tex. Dep't of Aging & Disability Servs., No. 1:16-cv-1135-RP, 2017 WL 8182825 (W.D. Tex. July 19, 2017). Thus, reinstatement and an injunction against future violations of Castilleja's rights are within Ex Parte Young.

         However, the Eleventh Amendment precludes a plaintiff from recovering back pay, front pay, or retroactive monetary relief as compensation for past violations, regardless of whether such relief is characterized as equitable. Jones v. Tex. Juvenile Justice Dept., 646 Fed.Appx. 374, 376-77 (5th Cir. 2016). Defendants argue that the accompanying request for “repayment of service credits; payment of retirement credits, addition to leave balances; and ‘all other emoluments and benefits'” is retroactive. Docket no. 8 at 7. To be more precise, Castilleja seeks not “repayment” but “restoration of service credit and all benefits such as but not limited to retirement credit, accrued annual leave and sick leave, retroactive to August 5, 2016.” Retroactive relief as compensation is barred, but payment of state funds as a necessary consequence of compliance in the future with a substantive federal-question determination is permissible. Fontenot v. McCraw, 777 F.3d 741, 754 (5th Cir. 2015). It is not entirely clear whether Castilleja is seeking impermissible retroactive relief. If Castilleja is merely asserting that he is entitled to future pay at a certain level and with certain service credits going forward, it may be prospective, with any monetary effects being incidental to the prospective relief. Monetary relief that is “ancillary” to injunctive relief is not barred ...


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