Before Judges Long, Stern and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
On appeal from the Superior Court of New Jersey, Law Division, Morris County.
On December 31, 1990, plaintiff Richard Beck filed a complaint alleging that his former employer, defendant Howden Food Equipment, Inc. (Howden), and its divisional president, defendant Claude Tribert, committed slander, violated the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. (CEPA), interfered with his advantageous relations, and committed a prima facie tort, which essentially was a claim of common law wrongful discharge.
Through a series of motions brought by defendants, partial summary judgment was granted as to each of plaintiff's claims. *fn1 Plaintiff appeals. We affirm and conclude that: (1) CEPA does not apply to post-employment retaliatory negative references; (2) plaintiff's CEPA claim for retaliatory discharge was time-barred, see N.J.S.A. 34:19-5; (3) plaintiff's common law wrongful discharge claim was properly dismissed on summary judgment because he reported defendants to OSHA after he was fired; (4) plaintiff was not entitled to partial summary judgment that his termination was in retaliation for attempting to protect his right to a safe workplace; (5) plaintiff's slander claim was properly dismissed pursuant to Mick v. American Dental Ass'n, 49 N.J. Super. 262 (App. Div.), certif. denied, 27 N.J. 74 (1958), and the Restatement (Second) of Torts §§ 577, 584; and (6) plaintiff's claim for interference with advantageous relations with prospective employers was properly dismissed for lack of sufficient evidence.
Plaintiff was hired by the Solbern Division (Solbern) of defendant Howden on August 6, 1987, to supervise its stockroom at an annual salary of $30,874. On January 11, 1989, plaintiff wrote a note to defendant Tribert, stating: "The outside crane and hoist is not safe in present condition. The beam needs repair. The safety does not work on the hoist. The switch still operates after releasing the up or down button. Please have the repairs made asap." Plaintiff was terminated on March 9, 1989. After his termination, plaintiff advised OSHA of various dangerous conditions at the Solbern facility. OSHA conducted an inspection of the Solbern facility on May 9, 1989, and cited the company for certain violations but found nothing wrong with the outside crane and hoist. *fn2
Between March 1989 and November 1990, using a resume that listed Solbern as his immediate past employer, plaintiff received, but did not accept, at least six offers of employment after contacting about 125 potential employers. Although pre-trial discovery revealed that plaintiff maintained records of the 125 companies to whom he applied for employment, he never contacted these companies to ask why he had not received an offer of employment or whether they had received a negative reference from Tribert or Solbern. Tribert, however, admitted at his deposition that he informed one unidentified prospective employer in July or August 1990 that plaintiff reported Howden to OSHA and that plaintiff "might be known as the type of person that called OSHA."
In November 1990, plaintiff and his friend, Stanley Halley, discussed the idea that Tribert may be giving plaintiff negative job references. Plaintiff and Halley agreed that Halley would pose as a prospective employer to Tribert in order to elicit Tribert's comments. Together, they drafted a letter on fictitious letterhead and plaintiff mailed the letter to Tribert. Tribert spoke with Halley later that month.
In his conversation with Tribert, Halley intended to find out if Tribert was "causing Mr. Beck not to be able to get any meaningful employ. . . . I didn't care whether he agreed or disagreed [with that]. I was just wondering whether he was the man who was giving Mr. Beck a bad time getting employed." Halley thought he could find out this information "[b]y finding out if this is the man who does not think Mr. Beck is a person of quality to hire."
According to Halley, [Tribert] brought up the point that Mr. Beck was mingling with other employees and always trying to make deals, buying or selling something. And he also went on to tell me that Mr. Beck called OSHA on the company, which caused a lot of problems to the company. He called OSHA after his employment was terminated at Solbern. And after we had this little discussion I told Mr. [Tribert] that I thought it would probably be a good idea then maybe if we too did not hire Mr. Beck, and [Mr. Tribert] thought it was a very good idea not to be involved with Mr. Beck.
Thereafter, Halley informed plaintiff of the contents of this conversation. Plaintiff then removed his employment at Solbern from his resume.
Shortly thereafter, on December 17, 1990, plaintiff requested that another friend, John Donnell, pose as a prospective employer to find out what Tribert was saying about him. The following conversation ensued:
TRIBERT: . . . [W]ould you like to know what I feel about [plaintiff]?
DONNELL: Yes, if you could tell me that.
TRIBERT: Well basically the gentleman is an average worker.
TRIBERT: I don't care too much for his character. I mean that has nothing to do with the job.
TRIBERT: I had to, eventually because of that, I had to still do something, so I discharged him. And in return he filed a complaint with the OSHA people by planting a piece of evidence that didn't exist before his departure, which, you know, certainly upset me to no end but in any case.
DONNELL: That is something. In terms of -- although that presents a problem which I'll have to investigate. In terms of loyalty and attendance, ...