OSHA investigated Seetharaman's complaint and determined that he had failed to state a claim under the whistleblower statutes because he had presented no evidence that the Respondents conspired with Stone to discriminate against him. Therefore, a connection between Stone's termination of Seetharaman's employment and the protected activities he alleged could not be inferred. June 10, 2002 Letter from OSHA. Accordingly, OSHA dismissed the seven Respondents in this case.

    Seetharaman requested a hearing. The ALJ scheduled a pre-hearing conference on July 17, 2002, to resolve the "substantial confusion" over the status of the case, the issues, and the parties involved. Hearing Transcript (TR) at 5. Subsequently, each of the Respondents filed motions for summary decision, contending that Seetharaman had failed to state a claim under the whistleblower protection provisions and that they were not Seetharaman's employers and had no employment relationship with him.

    The ALJ issued a Recommended Decision and Order (R. D. & O.) granting the Respondents' motions. He found that Seetharaman had alleged no facts that would directly or circumstantially show that any of the Respondents had any influence or control over the terms and conditions of Seetharaman's employment with Stone. R. D. & O. at 15. The ALJ concluded that there was no genuine issue of material fact pertinent to the essential element of a whistleblower case-the existence of an employer-employee relationship between respondent and complainant-and, therefore, dismissed the complaint. Id. at 16.

    In his brief to the ARB, Seetharaman argues that the Respondents affected the terms and conditions of his employment with Stone, resulting in his discharge, because they had mutual business dealings as vendors, contractors, lenders, or partners, which rendered them "a joint enterprise" that conspired to violate the environmental protection laws and blacklist him. Complainant's Initial Brief of Appeal at 2, 4 10-11. Respondents generally argue that they had no employment relationship with Stone affecting Seetharaman.

   We examine whether the Respondents are entitled to summary decision because the record establishes that they had no employment relationship with Seetharaman.

    The Secretary of Labor has delegated authority to the Administrative Review Board (ARB) to review an ALJ's recommended decision in cases arising under the environmental and nuclear whistleblower statutes. See 29 C.F.R. § 24.8 (2002). See also Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)). The ARB reviews an ALJ's recommended grant of summary decision de novo. Honardoost v. Peco Energy Co., ARB No. 01-030, ALJ 00-ERA-36, slip op. at 4 (ARB Mar. 25, 2003).

    Pursuant to 29 C.F.R. § 18.40(d), the ALJ may issue summary decision if the pleadings, affidavits, and other evidence show that there is no genuine issue as to any material fact and the moving party is entitled to prevail as a matter of law. Flor v. United States Dep't of Energy, ALJ No. 93-TSC-0001, slip op. at 10 (Sec'y Dec. 9, 1994), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Once the moving party has demonstrated an absence of evidence supporting the non-moving party's position, the burden shifts to the non-moving party to establish the existence of an issue of fact that could affect the outcome of the litigation. Hodgens v. General Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998).

    At this stage of summary decision, the non-moving party may not rest upon mere allegations, speculation, or denials of the moving party's pleadings, but must set forth specific facts on each issue upon which he would bear the ultimate burden of proof. Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e). If the non-moving party fails to establish an element essential to his case, there can be "‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

   Accordingly, the Board will affirm an ALJ's recommendation that summary decision be granted if, upon review of the evidence in the light most favorable to the non-moving party, we conclude, without weighing the evidence or determining the truth of the matters asserted, that there is no genuine issue as to any material fact and that the ALJ correctly applied the relevant law. Johnsen v. Houston Nana, Inc., JV, ARB No. 00-064, ALJ No. 99-TSC-4, slip op. at 4 (ARB Feb. 10, 2003); Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21 (ARB Nov. 30, 1999).

    To prevail on a complaint of unlawful discrimination under the whistleblower protection provisions, a complainant must establish that he is an employee and the respondent is an employer. Demski v. Indiana Michigan Power Co., ARB No. 02-084, ALJ No. 01-ERA-36, slip op. at 4 (ARB Apr. 9, 2004). See also Anderson v. Metro Wastewater Reclamation Dist., ARB No. 01-103, ALJ No. 97-SDW-7, slip op. at 8 (ARB May 29, 2003) (noting that SWDA, SDWA, CERCLA, FWPCA, TSCA and ERA, require complaining employee to have an employment relationship with respondent employer). A complainant must also show that he engaged in protected activity of which the respondent was aware, that he suffered adverse employment action, and that the protected activity was the reason for the adverse action, i.e., that a nexus existed between the protected activity and the adverse action. Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at 9 (ARB Feb. 28, 2003). See also Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1, slip op. at 5 (ARB Apr. 30, 2004).

    Similarly, John English, vice president and general manager of English Boiler, disclaimed all knowledge of Seetharaman until he received OSHA's June 10, 2002 letter dismissing his claim against English. He declared that English had no involvement with Stone beyond bidding for a boiler contract and had never caused anyone at Stone to discriminate against Seetharaman. English Motion to Dismiss, Exhibit A. Finally, Donald P. Cahill, senior project manager for PG&E, averred that he and his company had no knowledge or information about Stone's discharge of Seetharaman and no control over internal employment at Stone. PG&E Motion to Dismiss, Attachment.

    Because the Respondents submitted admissible evidence that they did not employ Seetharaman or control his employment with Stone, the burden shifted to Seetharaman to produce enough evidence to create a triable issue of fact regarding the employer-employee relationship. In other words, he had to submit facts—through affidavits, depositions, or other evidence—that refuted, disputed, or otherwise challenged the Respondents' proof. Mere allegations, bare denials, or speculative theories do not create a genuine issue of material fact. See Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994) ("conclusory allegations, improbable inferences, and unsupported speculation" are insufficient to avoid summary judgment even where discriminatory intent is an issue).

    Seetharaman submitted no affidavits or other documents demonstrating that the Respondents exerted any control over the terms and conditions of his employment with Stone. In fact, Seetharaman produced no evidence whatsoever addressing the Respondents' contention that they had no influence or effect on his employment with Stone. He did not dispute Respondents' statements that they had no knowledge of his transfer or discharge by Stone. He did not allege one specific incident of influence or control from which any inference could be drawn.

    The evidence he did submit (a January 17, 2000 memorandum from Stone's President, Charles Moore, regarding the company's nuclear services; MWRA's March 19, 2001 verification of Seetharaman's employment there; other internal memoranda; and copies of numerous newspaper and Internet articles describing Respondents' projects, court cases, and environmental studies) does not address the issue of an employer-employee relationship, and therefore does not create a triable issue of material fact.

    Seetharaman generally accused his three former employers, GE, Exelon, and MWRA, of blacklisting him in the power industry since he left GE in 1987 because, despite his contention that he had excellent qualifications, he has never been "promoted even once anywhere." The lack of promotion, according to Seetharaman, is consistent with a "threat" from a GE employee in 1986 that Seetharaman would "never get anywhere" if he went against GE. Complainant's Motion to Oppose Summary Judgment regarding GE, Exelon, MWRA; Complainant's Pre-hearing Reports regarding GE.

    The Complainant submitted no facts supporting this bare allegation of conspiracy. Further, he produced no evidentiary support for how or when which Respondent allegedly blacklisted him. As the ALJ noted, Seetharaman's own evidence showed that he was repeatedly able to obtain employment after being discharged. R. D. & O. at 16.

    Seetharaman had four opportunities to support his theory of the Respondents' conspiracy to blacklist him and adversely affect his employment with Stone: the complaint, the pre-hearing reports, the pre-hearing conference, and the responses to summary decision motions. His submissions are bereft of the required factual statements or evidentiary affidavits supporting his allegations. See Complainant's Motions to Oppose Summary Judgment/Motion to Dismiss, regarding Defendant PG&E et al, dated September 29, 2002.

    While we are cognizant of the Complainant's pro se status, see Young v. Schlumberger, ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-9 (ARB Feb. 28, 2003), and have reviewed each of Seetharaman's pleadings, we conclude that Seetharaman's unsupported assertions of Respondents' conspiracy to discriminate against him fail to create a genuine issue of material fact. Because Seetharaman failed to adduce evidence countering Respondents' affidavits and pleadings, he has raised no genuine issue of material fact regarding an essential element of his claim: an employer-employee relationship with Respondents. Therefore, all other facts alleged by Seetharaman are immaterial, and Respondents are entitled to summary decision.

   We have thoroughly examined the record and find that the ALJ's recitation of the facts is accurate, thorough, and fair. The evidence supports his findings of fact and he has articulated the proper legal framework. Therefore, because the ALJ correctly relied upon established legal precedent, we AFFIRM his conclusion that the Respondents are entitled to summary decision, and DISMISS the case.

   SO ORDERED.

      WAYNE C. BEYER
      Administrative Appeals Judge

      OLIVER M. TRANSUE
      Administrative Appeals Judge