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1

 Because the Court finds that this matter can be decided on the parties’ memoranda,

declarations, and exhibits, and because the Court previously heard oral argument on similar

issues, defendants’ request for oral argument is denied.

ORDER GRANTING MOTION 

FOR PARTIAL SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PETER TILTON, 

Plaintiff,

v.

THE MCGRAW-HILL COMPANIES, INC.,

et al.,

Defendants.

Case No. C06-0098RSL

ORDER GRANTING MOTION FOR

PARTIAL SUMMARY JUDGMENT

REGARDING PLAINTIFF’S FUTURE

EMPLOYABILITY

I. INTRODUCTION

This matter comes before the Court on a motion for partial summary judgment filed by

defendants the McGraw-Hill Companies, Inc. and Michelle Conlin (collectively, “defendants”). 

(Dkt. #128).1

 Defendants argue that discovery is now closed and plaintiff has adduced no

evidence that the BusinessWeek article affected his employability or caused future wage loss. 

They therefore seek summary judgment on those claims.

For the reasons set forth below, the Court grants the motion. 

II. DISCUSSION

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2

 Plaintiff’s response to the motion vaguely references “others” who might testify on his

behalf at trial. Plaintiff’s Response at p. 7. Even if those witnesses had been disclosed, which

they were not, a vague reference to witnesses, without evidence from them, cannot defeat a

summary judgment motion.

ORDER GRANTING MOTION 

FOR PARTIAL SUMMARY JUDGMENT - 2

A. Summary Judgment Standard.

On a motion for summary judgment, the Court must “view the evidence in the light most

favorable to the nonmoving party and determine whether there are any genuine issues of material

fact.” Holley v. Crank, 386 F.3d 1248, 1255 (9th Cir. 2004). All reasonable inferences

supported by the evidence are to be drawn in favor of the nonmoving party. See Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). “[I]f a rational trier of fact might

resolve the issues in favor of the nonmoving party, summary judgment must be denied.” T.W.

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

B. Analysis.

In a March 9, 2007 order, the Court granted in part defendants’ motion to dismiss

plaintiff’s claims as a sanction for his discovery misconduct. The Court held:

[T]he Court precludes plaintiff from arguing that the article led to his dismissal from

Microsoft or seeking damages related to the termination of his employment from

Microsoft. This order does not affect plaintiff’s other non-economic damages or limit his

ability to argue and present evidence to show that (1) the article damaged his reputation,

which has impacted or will impact his ability to obtain other employment, and/or (2) the

article caused or exacerbated plaintiff’s health issues, which has impacted or will impact

his ability to obtain other employment. Plaintiff will not be granted an extension of the

discovery deadline or expert witness disclosure deadline to obtain additional evidence

regarding future wage loss.

Plaintiff argues that the article has negatively affected his reputation, which will impede

his ability to obtain other employment. Plaintiff, however, has not sought other employment

since the article was published, so he has no evidence that his employment prospects have

actually been affected. Furthermore, he has not identified any witnesses, lay or expert, to opine

regarding how the article might impact his employability.2

 For example, he has not identified

any potential employers who might base a hiring decision on the article or elicited opinions from

them. Nor has he identified any job recruiters or similar professionals who could testify

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3

 In their reply memorandum, defendants request that the Court strike the declaration of

Dr. Wolf. Because the Court grants defendants’ motion even if Dr. Wolf’s declaration is

considered, it need not rule on the admissibility of the declaration.

ORDER GRANTING MOTION 

FOR PARTIAL SUMMARY JUDGMENT - 3

regarding the impact of the article on his employment prospects. Instead, plaintiff offers only

his own speculation that the article will negatively affect his employability, if and when he seeks

other employment. He argues that when he worked at Microsoft, they would “Google”

perspective employees, and he implies that Microsoft would not have hired someone who was

the subject of such an article. Declaration of Peter Tilton, (Dkt. #136) at p. 6. Even if plaintiff’s

testimony reflects Microsoft’s practices, which is questionable, it is irrelevant, in part because

plaintiff is not seeking re-employment with Microsoft. Furthermore, there is no evidence that

other employers with whom plaintiff might seek employment would follow a similar practice. 

Plaintiff lacks foundation to testify regarding the practices of potential employers or how they

might view him in light of the article. See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 87

(2d Cir. 2005) (explaining that an employee lacked foundation to testify regarding how others in

the industry perceived her reputation); Fed. R. Evid. 602; Fed. R. Evid. 701. Similarly, the

Court will not invite the jury, who may have no experience in hiring or in relevant industries, to

speculate without the benefit of evidence regarding how the article will impact plaintiff’s

employability with potential unidentified employers. 

Plaintiff argues that summary judgment is unwarranted because he has presented

testimony from his psychiatrist, Dr. Daniel Wolf, that the article negatively impacted his health

and his ability to obtain other employment. Even if that evidence is admissible3

 and probative,

which defendants dispute, it is insufficient to defeat summary judgment. Damages may not be

“based only on speculation or guesswork.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259

F.3d 1101, 1107 (9th Cir. 2001). In this case, plaintiff has not identified any expert to testify

about the amount of his future lost wages, and it is now too late to do so. Instead, plaintiff seeks

to calculate his future wage loss based on his earnings at Microsoft. Allowing him to do so,

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ORDER GRANTING MOTION 

FOR PARTIAL SUMMARY JUDGMENT - 4

however, would be inappropriate for at least two reasons. It would permit plaintiff to evade the

Court’s prior ruling precluding him from seeking damages related to his separation from

Microsoft. Furthermore, there is no evidence that the Microsoft earnings reflect what plaintiff

could earn at other employment. In fact, he testified during his deposition that Microsoft

compensates its employees more generously than other employers. Tilton Dep. at pp. 110-11. 

This case is similar to Church v. Steller, 35 F. Supp. 2d 215 (N.D.N.Y. 1999) in which

plaintiff, a former high school principal, sought compensation for the loss of employment he

would have obtained had the school district not made public his resignation in violation of the

parties’ agreement. The court rejected as too speculative plaintiff’s claim for future economic

damages based on damage to his reputation because plaintiff “offered no evidence . . . to

establish what employment opportunities were lost, that he would have obtained any such

employment, or the rate of pay he would have received.” Church, 35 F. Supp. 2d at 222. 

Similarly, in this case, plaintiff has no evidence of what employment opportunities he has lost or

the rate of pay he would have received. Absent such evidence, plaintiff’s claim for future

economic wage loss would be based solely on speculation. The claim must therefore be

dismissed. 

III. CONCLUSION

For the foregoing reasons, defendants’ motion for partial summary judgment (Dkt. #128)

is GRANTED.

 

DATED this 30th day of October, 2007.

A

Robert S. Lasnik

United States District Judge

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