SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1841-96T1
RICHARD BECK,
Plaintiff-Appellant,
v.
CLAUDE TRIBERT and HOWDEN
FOOD EQUIPMENT INCORPORATED,
Defendants-Respondents.
Argued May 12, 1998 - Decided June 15, 1998
Before Judges Long, Stern and Kleiner.
On appeal from the Superior Court of
New Jersey, Law Division, Morris County.
Judson A. Parsons, Jr. argued the cause for
appellant.
Anthony Palmisano, Jr. argued the cause for
respondents (McCarter & English, attorneys;
Penelope M. Taylor, of counsel; Ms. Taylor
and Mr. Palmisano, on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
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.See footnote 1
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.
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.
DONNELL: Yes.
TRIBERT: I don't care too much for his
character. I mean that has nothing to do
with the job.
DONNELL: Right.
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, could you tell me anything about
that?
TRIBERT: Loyalty, I don't know. Attendance,
it was fair -- nothing unusual about it.
DONNELL: But he was terminated for what,
just --
TRIBERT: No, he was basically terminated
because -- two things: the load that we had
and his contribution were not all that swift
-- and we decided we could do without him and
we let him go.
Plaintiff certified that he "definitely did not have either
Halley or Donnell contact defendants for the purpose of getting
evidence on which [he] could base a law suit."
Two weeks after the Donnell-Tribert conversation, plaintiff
filed his complaint. During pre-trial discovery, plaintiff
disclosed that during the ensuing months after removing Solbern
from his resume, he applied to an additional twenty-five
employers and received three offers of employment. He eventually
accepted a job paying $22,500 per year plus an eight percent
bonus, or a total of $24,300, but which provided benefits having
a value of $2,000 less than the benefits he received at Solbern.
At his deposition, plaintiff testified that he did not feel
that he suffered any damages as a result of the statements made
by Tribert to Halley and Donnell following their request for a
reference. Moreover, the deposition testimony of both Halley and
Donnell demonstrates that neither Halley's nor Donnell's opinion
of plaintiff changed as a result of Tribert's statements.
Tribert in retaliation for plaintiff's reporting Howden to OSHA;
and (2) a claim for retaliatory discharge. The motion judge
concluded that: (1) the CEPA prohibition of "any retaliatory
action" by an employer does not apply to retaliatory negative
references; and (2) plaintiff's CEPA claim for retaliatory
discharge was barred by the statute of limitations.
Plaintiff appeals contending that he has an actionable claim
under CEPA for damages caused by defendants' retaliatory negative
references and that he may also maintain an action for a
continuing CEPA violation which began with his wrongful discharge
and ended with the negative references. We turn first to the
question of whether negative retaliatory references are
actionable under CEPA. Plaintiff argues: "There is nothing in
CEPA which says or implies that the only type of retaliatory
conduct it prohibits is a wrongful discharge." He further
contends:
Among the most important "terms or
conditions" of any employment are the
references that the employer will give to
potential future employers. Each of
Tribert's retaliations against plaintiff by
responding to requests for references by
blacklisting and slandering him was therefore
an "adverse employment action" against
plaintiff and violated CEPA.
Defendants argue to the contrary, stating that "an adverse
employment action `in the terms and conditions of employment'
cannot, by definition, include a post-employment negative
reference." We agree.
CEPA's history has been reviewed exhaustively, most recently
in Regan v. City of New Brunswick,
305 N.J. Super. 342 (App. Div.
1997), and need not be reiterated here. We do, however,
recognize the purpose of CEPA "to protect and encourage employees
to report illegal or unethical workplace activities and to
discourage public and private sector employees from engaging in
such conduct," and that CEPA should be liberally construed to
achieve its remedial purpose. Abbamont v. Piscataway Township
Bd. of Educ.,
138 N.J. 405, 431 (1994). Still, CEPA's express
language, as well as the Supreme Court's opinion in Young v.
Schering Corp.,
141 N.J. 16 (1995), clearly indicate that CEPA
does not apply to post-employment retaliatory negative
references.
While construing the applicability of CEPA's waiver
provision to claims other than retaliatory discharge claims and
agreeing "with the Appellate Division's factual analysis in
determining why certain claims were not waived," id. at 31, the
Supreme Court stated in Young that "`[t]he language "other
adverse employment action taken against an employee in the terms
and conditions of employment" in N.J.S.A. 34:19-2e (emphasis
added), does not include actions which might affect an employment
relationship, or potential employment relationship, between the
employee and a third party.'" Id. at 32 (quoting Young v.
Schering Corp.,
275 N.J. Super. 221, 239-40 (App. Div. 1994)).
The plaintiff in Young brought a CEPA claim against his former
employer, alleging that it terminated him for objecting to
company research practices. Id. at 21-22. Like plaintiff here,
the plaintiff in that case also asserted claims for post-employment defamation, slander and malicious interference with
prospective employment. Id. at 23.
In holding that the plaintiff's common law claims were not
waived, the Court in Young stated that "`[e]ven if plaintiff can
establish that . . . [his employer] interfered with prospective
employment opportunities, such conduct will not constitute a
violation of CEPA.'" Id. at 32 (quoting Young, supra, 275 N.J.
Super. at 239-40). The statute, according to the Court, "`covers
action taken only with respect to the employment relationship
established between the employer and employee.'" Ibid. (quoting
Young, supra, 275 N.J. Super. at 240). The Supreme Court's
approval of this court's construction of CEPA in Young, supra,
275 N.J. Super. 221, is contrary to plaintiff's assertion that
CEPA applies to post-employment negative retaliatory references.
Moreover, CEPA defines "employee" as "any individual who
performs services for and under the control and direction of an
employer . . . ." N.J.S.A. 34:19-2b. The use of the present
tense - "performs" - suggests the Legislature intended to include
under CEPA only adverse employment actions that are taken against
an employee while he or she is still an employee, and not after
termination. Along similar lines, the Legislature distinguished
"employees" from "former employees" in N.J.S.A. 34:19-5 by
allowing "former employees" terminated in violation of CEPA one
year to file an action under the Act. If the Legislature
intended "terms and conditions of employment" to include job
references given by an employer for former employees, then it
would have included the term "former employees" in N.J.S.A.
34:19-2e, which defines "retaliatory action."
We also reject plaintiff's argument, predicated on Robinson
v. Shell Oil Co., 519 U.S. ___,
117 S. Ct. 843,
136 L. Ed.2d 808
(1997), that retaliatory negative references constitute "adverse
employment action" under N.J.S.A. 34:19-2e. The United States
Supreme Court in Robinson held that a former employee could
maintain an action under Section 704(a) of Title VII of the Civil
Rights Act of 1964, see
42 U.S.C. §2000e-3(a), for an employer's
post-employment negative retaliatory references. Id. at , 117
S. Ct. at 849, 136 L. Ed.
2d at 816-17. The Court's decision in
Robinson was based on an ambiguity in the definition of the word
"employee" in the statute. See
42 U.S.C. §2000e(f). "Employee"
is defined as "`an individual employed by an employer.'" Id. at
___, 117 S. Ct. at 846, 136 L. Ed.
2d at 814 (quoting
42 U.S.C. §2000e(f)). The Court concluded that it was unclear whether the
term included a company's former employees, and held that former
employees were protected because the statute lacked any "temporal
qualifier" indicating that it only covered present employees.
Robinson, supra, 519 U.S. at ___, 117 S. Ct. at 846-47, 136 L.
Ed.
2d at 813-15.
Unlike the statute at issue in Robinson, there is no
ambiguity in CEPA regarding who is an "employee" for purposes of
N.J.S.A. 34:19-2b and -2e. Further, as the Third Circuit noted
in Nelson v. Upsala College,
51 F.3d 383, 388 n.7 (3d Cir. 1995),
also involving a Title VII claim, "the possibility that the
denial of a retaliation claim for conduct not related to an
employment relationship will discourage Title VII activity is
slight because serious retaliatory conduct unrelated to an
employment relationship will be actionable under state law."
That rationale is equally applicable here.
Plaintiff also contends that his CEPA claim for wrongful
discharge should not have been barred by the statute of
limitations because "the discharge was part of a continuing
series of CEPA violations, including defendants' retaliatory
negative references, which tolled the running of the limitations
period on the discharge."
CEPA's statute of limitations provision states: "Upon a
violation of any of the provisions of this act, an aggrieved
employee or former employee may, within one year, institute a
civil action in a court of competent jurisdiction." N.J.S.A.
34:19-5 (emphasis added). Plaintiff was terminated on March 9,
1989, but did not file his CEPA claim until December 31, 1990,
almost twenty-two months later. Were we to accept plaintiff's
contention, however, we would measure the running time of the
limitations period from the last occurrence, the last act of
alleged retaliatory negative references, and not from the first
occurrence, plaintiff's termination. West v. Philadelphia Elec.
Co.,
45 F.3d 744, 754 (3d Cir. 1995).
We conclude that plaintiff's CEPA wrongful discharge claim
was properly dismissed as time-barred, and that the conduct
alleged by plaintiff does not fit within the "continuing
violation" doctrine. The alleged conduct here is more akin to
two separate and distinct employer actions, and not "intentional,
pervasive, and regular," id. at 756, or "more than the occurrence
of isolated or sporadic acts of intentional [conduct]," id. at
755 (citation omitted). Plaintiff's termination was a "discrete
event" which triggered his duty to "assert his rights arising
from that deprivation." Id. at 756.
Clearly, Tribert's informing one unidentified prospective
employer in July or August 1990 that plaintiff contacted OSHA
does not constitute "a persistent, on-going pattern." Id. at
755; see also Terry v. Mercer County Bd. of Chosen Freeholders,
173 N.J. Super. 249, 253 (App. Div. 1980), modified on other
grounds,
86 N.J. 141 (1981) (involving alleged discrimination in
the payment of wages over of period of time, such that each pay
period constituted a continuing violation of the relevant
statute); Decker v. Board of Educ.,
153 N.J. Super. 470, 474
(App. Div. 1977) (same), certif. denied,
75 N.J. 612 (1978); see
also Havens v. Realty Corp. v. Coleman,
455 U.S. 363, 381,
102 S.
Ct. 1114, 1125,
71 L. Ed.2d 214, 230-31 (1982) (involving alleged
discrimination under the federal Fair Housing Act where the
defendant appeared to have a policy of denying the availability
of housing to African-Americans, and under that policy, engaged
in a series of violations of a single section of the statute).
Further, as defendants point out, "courts applying the
continuing violation doctrine in other contexts have held that
negative references following an alleged retaliatory discharge do
not constitute a "continuing violation." See, e.g., Berry v.
Board of Supervisors of L.S.U.,
715 F.2d 971, 980 (5th Cir. 1983)
("[C]ases where an employee is discharged without the actionable
period but is injured by his former employer's discriminatory
references within the period, indicate that the latter acts are
not a continuation of the initial discharge."), cert. denied,
479 U.S. 868,
107 S. Ct. 232,
93 L. Ed.2d 158 (1986); Tarvesian v.
Carr Div. of TRW, Inc.,
407 F. Supp. 336, 338-40 (D. Mass. 1976)
(holding that the plaintiff's charges of negative references
given by his former employer "simply do not constitute a
`continuing pattern of discrimination' as that term has been
developed in case law" and that "[t]he mere insertion of the word
`continuing' into an otherwise unconnected sequence of events
does not create a pattern of the kind necessary to suspend the
normal time limitations on Title VII actions").
informed OSHA of Howden's dangerous workplace only after he was
discharged.
Since we conclude that the motion judge correctly dismissed
plaintiff's common law wrongful discharge claim on the merits, we
need not consider the first reason relied upon by the trial
judge, which predated our decision in Crusco v. Oakland Care
Ctr., Inc.,
305 N.J. Super. 605 (App. Div. 1997) (holding that a
former employee's assertion of a CEPA claim in a complaint did
not bar her from bringing a common law wrongful discharge claim,
where the CEPA claim was time-barred). See also Ballinger v.
Delaware River Port Auth., N.J. Super. (App. Div. 1998)
(following Crusco and holding that plaintiffs who erroneously
pled an unavailable CEPA claim were not barred from asserting
wrongful discharge claims based on the same proofs). Plaintiff's
common law wrongful discharge claim was properly dismissed on the
merits because plaintiff was terminated before he filed his
report with OSHA.
It is undisputed that plaintiff was an at-will employee who
could be fired by defendants "for no specific reason or simply
[for] bothering the boss." Velantzas v. Colgate-Palmolive Co.,
Inc.,
109 N.J. 189, 191 (1988). "However, a terminated at-will
employee has a cause of action against the employer for wrongful
termination when the discharge violates state law or public
policy." Id. at 191-92 (citing Pierce v. Ortho Pharmaceutical
Corp.,
84 N.J. 58 (1980)).
A common law claim under Pierce, though, has been
distinguished from the broader CEPA claim:
Although the enactment of CEPA did not
abolish the Pierce common-law cause of
action, we are persuaded that the Legislature
intended that the N.J.S.A. 34:19-8 waiver
prevent an employee from pursuing both
statutory and common-law retaliatory
discharge causes of action. It thus sought
to curtail essentially cumulative remedial
actions. The CEPA cause of action benefits
the employee because notification or
threatened notification to a public body or a
supervisor of illegal employer conduct is
sufficient. N.J.S.A. 34:19-3, subd. a.
Under Pierce, however, there must be actual
notification to a governmental body of
illegal employer conduct.
[Young v. Schering Corp.,
141 N.J. 16, 27
(1995) (emphasis added) (citation omitted).]
This, defendants argue, is dispositive of plaintiff's Pierce
claim because he reported the allegedly dangerous working
conditions to OSHA after his termination.
We agree with that proposition and also with defendants'
additional argument that
no New Jersey case has recognized a claim for
wrongful discharge based solely upon an
employee's internal complaints about a
corporate decision, where the employee has
failed to bring the alleged violation of
public policy to any governmental or other
outside authority or to take other effective
action in opposition to the policy. . . .
Therefore, the mere voicing of opposition to
corporate policy within a corporation
provides an insufficient foundation for
assertion of a Pierce claim.
[House v. Carter-Wallace, Inc., 232 N.J. Super. 42, 48-49 (App. Div.), certif. denied, 117 N.J. 154 (1989); see also LePore v. National Tool and Mfg. Co., 115 N.J. 226 (involving a plaintiff who actually reported
safety violations to OSHA prior to his
termination), cert. denied,
493 U.S. 954,
110 S. Ct. 366,
107 L. Ed.2d 353 (1989).]
Plaintiff was terminated almost two months after he
delivered his note concerning the crane and hoist to Tribert.
Further, plaintiff testified at his deposition that he "orally
informed Tribert about [the dangerous conditions at Solbern] and
asked that they be corrected" several times between the summer of
1988 and January 1989. Plaintiff did not notify OSHA of these
conditions until "the latter part of April," almost two months
after his March 9, 1989, termination. Thus, as in House, supra,
there is no basis for inferring that defendants discharged
plaintiff in order to prevent him from communicating information
about defendants' dangerous workplace to outside parties. 232
N.J. Super. at 51.
publication of the slander was to agents of plaintiff," and that
plaintiff invited the remarks.
[T]o prove defamation, a plaintiff must
establish, in addition to damages, that the
defendant (1) made a defamatory statement of
fact (2) concerning the plaintiff (3) which
was false, and (4) which was communicated to
a person or persons other than the plaintiff.
The fifth element that must be proven is
fault. Where . . . [the] plaintiff is a
private figure and the speech is about an
exclusively private concern, a traditional
negligence standard of fault is applicable,
which is defined as communicating the false
statement while acting negligently in failing
to ascertain the truth or falsity of the
statement before communicating it. Fault may
also be established by showing that [the]
defendant knows the statement is false and
that it defames plaintiff or [the] defendant
acts with reckless disregard of its truth or
falsity.
[Feggans v. Billington,
291 N.J. Super. 382,
390-91 (App. Div. 1996) (citations omitted).]
Defendants assert that the "trial court properly dismissed
plaintiff's slander claim because the statements attributed to
Tribert were not published and were protected by a qualified
privilege." As we have noted, Tribert admitted that he informed
one unidentified prospective employer that plaintiff reported
Howden to OSHA and that plaintiff "might be known as the type of
person that called OSHA." These statements, however, are not
actionable because they are true and lack sufficient proof. See
R. 2:11-3(e)(1)(E).
Tribert also made defamatory statements to plaintiff's
friends, Halley and Donnell, who posed as prospective employers.
These statements also do not form the basis for a slander claim
because they were not published. The Restatement (Second) of
Torts § 577 cmt. e, at 203 (1977), provides that "the
communication to a servant or agent of the person defamed is a
publication although if the communication is in answer to a
letter or a request from the other or his agent, the publication
may not be actionable in defamation." Further, "[a]n honest
inquiry or investigation by the person defamed to ascertain the
existence, source, content or meaning of a defamatory publication
is not a defense to an action for its republication by the
defamer." Id. § 584, at 242. "The rule stated in [Section 584]
is applicable only to the publication of defamatory matter at the
request or procurement of a plaintiff who acts honestly for the
purpose of ascertaining the existence, source, content or meaning
of a prior defamatory publication." Id. § 584 cmt. a, at 242.
"To come within [Section 584], the defamatory matter must be
repeated. The mere acknowledgment of a previous publication is
not a republication." Id. § 584 cmt. c.
When the publication of defamatory
matter has been invited, instigated or
procured by the one defamed, or by someone
acting on his behalf, he generally cannot be
heard to complain of the resulting injury,
particularly, when it is elicited for the
purposes of predicating an action thereon.
However, the action would not be barred if
the plaintiff, or someone at his request,
made or caused the inquiry to be made in good
faith so as to ascertain whether defamatory
charges had been made against him or perhaps
to seek clarification of an ambiguous remark.
[Mick v. American Dental Ass'n, 49 N.J.
Super. 262, 275 (App. Div.) (citations
omitted), certif. denied,
27 N.J. 74 (1958).]
The plaintiff in Mick was a dentist active in opposing
fluoridation who requested his friend to write a letter to the
defendant to find out what the defendant might say about him. He
testified that
he had read that the Bureau of Public
Information of the American Dental
Association had invited inquiries with
respect to the opposition to fluoridation and
he requested [his friend] to write the letter
because he "was always being kidded [by all
his associates] about being opposed to
fluoridation * * *" "I had been so active in
opposing fluoridation in the Army and before
I went into the Service, I wondered if they
had anything on me. It was curiosity."
[Id. at 271.]
In Mick, we held that the plaintiff's action was
barred on the theory of invitation or
consent. It is offensive to an elementary
sense of justice that after securing
defendant's candid expression of its opinion
of plaintiff's views on fluoridation through
his use of [his friend's] letter as a
provocative decoy, he should be permitted to
sue for the injury he thus invited.
[Id. at 276.]
Defendants are correct in their contention that "[c]ontrary to
plaintiff's assertion, Dr. Mick did not request that his friend
write the Association for the purpose of eliciting statements
that could form the basis of a legal action."
We also agree with defendants that Mick "is strikingly
similar to this action" and that the "good faith" exception as
explained in Mick and the Restatement does not apply here.
Neither Halley nor Donnell contacted Tribert to ascertain "the
existence, source, content or meaning of a prior defamatory
publication." Restatement, supra, § 584 cmt. a. Rather, like
the plaintiff in Mick, they and plaintiff were curious as to what
Tribert might say about plaintiff. As defendants point out,
Halley and Donnell "had no knowledge that Tribert had previously
made any slanderous remarks, and were not inquiring concerning
the substance of any such previous remarks." Since Halley's and
Donnell's communications with Tribert served as "provocative
decoys," plaintiff "should [not] be permitted to sue for the
injury he thus invited." Mick, supra, 49 N.J. Super. at 276.
Moreover, in our view, Tribert's defamatory statements to
Halley and Donnell may not be actionable because the statements
were either true, see Kass v. Great Coastal Express, Inc.,
291 N.J. Super. 10, 18 (App. Div. 1996), modified on other grounds,
152 N.J. 353 (1998), or protected by the qualified privilege, id.
at 19. Although we recognize that a portion of Tribert's
comments arguably were based on his conjecture,See footnote 3 even that
statement may be subject to a qualified privilege. See ibid.;
see also Erickson v. Marsh & McLennan Co., Inc.,
117 N.J. 539,
563 (1990) (discussing qualified privilege generally). Because
we conclude that plaintiff's slander claim based on these
statements is barred by Mick, supra, we need not consider the
applicability of qualified privilege.
information provided by Tribert. Moreover, Tribert's statement
to the unidentified caller was true, and thus plaintiff's claim
is foreclosed. See C.R. Bard, Inc. v. Wordtronics Corp.,
235 N.J. Super. 168, 173-74 (Law Div. 1989).
We have thoroughly canvassed the record. We conclude the
motion judge properly granted each of defendant's successive
motions for partial summary judgment.
Affirmed.
Footnote: 1 Defendant Tribert had filed an answer and a counterclaim alleging slander. When plaintiff's complaint was dismissed, the trial court, with the consent of the parties, dismissed without prejudice defendant's counterclaim, thus permitting plaintiff's appeal from a final judgment of dismissal. Footnote: 2 In a certification filed by plaintiff in response to one of defendants' motions for partial summary judgment, he contended that OSHA inspected only a one-ton crane but had failed to inspect the two-ton crane, which was the subject of plaintiff's complaint. This distinction is irrelevant to the disposition of this appeal. Footnote: 3 As noted in the reproduction of Tribert's conversation with Donnell, supra page 5, Tribert accused plaintiff of "planting evidence" in anticipation of OSHA's investigation. In Tribert's deposition, he admitted that he did not know, in fact, that plaintiff had "planted evidence," but he suspected that plaintiff had done so.