United States Court of Appeals For the First Circuit
No. 24-1310
MATTHEW WALEYKO,
Plaintiff, Appellant,
v.
JOHN PHELAN, Secretary of the Navy,*
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Barron, Chief Judge, Lynch and Howard, Circuit Judges.
Sonja L. Deyoe, with whom Law Offices of Sonja L Deyoe was on brief, for appellant.
Bethany N. Wong, Assistant U.S. Attorney, with whom Zachary A. Cunha, U.S. Attorney, was on brief, for appellee.
July 25, 2025
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary of the Navy John Phelan is automatically substituted for former Secretary of the Navy Carlos Del Toro as Respondent. HOWARD, Circuit Judge. The Naval Undersea Warfare
Center ("the Warfare Center"), a division of the U.S. Navy focused
on the research and development of submersible weapons systems,
asked Appellant Matthew Waleyko to resign at the end of his
two-year term of probationary employment. After his termination,
Waleyko sued the Secretary of the Navy ("the Navy"), alleging sex
discrimination under Title VII. The district court dismissed
Waleyko's suit for failure to state a claim, and we affirm.
I.
In reviewing a motion to dismiss for failure to state a
claim, "[w]e 'draw the facts from the complaint and its
attachments,' taking the well-pleaded facts as true and construing
all reasonable inferences in [the plaintiff's] favor." Lawrence
Gen. Hosp. v. Cont'l Cas. Co., 90 F.4th 593, 595 (1st Cir. 2024)
(quoting Lanza v. Fin. Indus. Regul. Auth., 953 F.3d 159, 161 (1st
Cir. 2020)). Accordingly, we draw on the allegations in Waleyko's
complaint to summarize the relevant facts below.
A.
In June 2020, Waleyko was hired to work as a civilian
computer scientist in the Undersea Warfare Platforms and Payloads
Integration Department ("UWDC") at the Warfare Center facility in
Newport, Rhode Island. There, he was assigned to a project called
"Code 4542" ("Code 45"). Waleyko's employment at the Warfare
Center was subject to a two-year probationary period, after which
- 2 - the Navy did not guarantee his continued employment. As far as
his complaint reveals, the first seventeen months of Waleyko's
probationary period were uneventful.
In February or March 2022, however, Waleyko's immediate
supervisor, Sravanthi Bodana, met with him to discuss complaints
made by a female coworker, Beibhinn Gallagher, about his behavior
towards her. The complaint alleges that Bodana told Waleyko that
Gallagher had reported that "he sounded condescending," and Bodana
advised him "to be mindful of tone use" with Gallagher in the
future. Waleyko alleges that "Bodana did not use similar language
with female employees."
In the same or a subsequent meeting (his complaint leaves
the timing unclear), Waleyko alleges that Bodana indicated that
Gallagher "made numerous accusations against him." Bodana
allegedly asked Waleyko about Gallagher's claim that Waleyko
forced her to carpool with him on two Warfare Center-related
business trips in November and December 2021, noting that an
investigation into the claim was then ongoing. Waleyko disputed
Gallagher's accounts. Although maintaining that "he was never
told what exactly was being alleged against him," Waleyko alleges
that he "became aware that Ms. Gallagher had alleged that she felt
sexually harassed by" Waleyko, that she had described him as
"stalkerish" because of what the complaint characterizes as "a
- 3 - joke about sending [her] a gift," and that she had likened him to
an "active shooter."
Notwithstanding his meeting(s) with Bodana, Waleyko
alleges that he "was never contacted by an investigator, nor asked
any questions as to Ms. Gallagher's accusations," and that the
Navy "did not investigate the allegations against [him]." Waleyko
also maintains that he was "never provided the opportunity to speak
or provide evidence during the investigation into Ms. Gallagher's
accusations." Waleyko adds in his complaint that "[t]hese sorts
of allegations were not made against women in [C]ode 45, and
allegations of this type, when they were made, were always made by
women against men" and that the Navy "gave credence to" Gallagher's
accusations "because he was a male, where as [sic] it did not give
credence to similar investigations involving women."
A second disciplinary episode involving Waleyko occurred
in early April 2022. Waleyko alleges that around that time another
female coworker, Layna Nelson, incorrectly reported to the UWDC's
Artificial Intelligence Director, Captain Jeffrey Anderson, that
Waleyko had deleted certain of the Warfare Center's code files.
In contradiction of this accusation, according to Waleyko, another
senior-level employee on the same project informed him that, on
April 13, the employee "found the files and ran the code" that
Nelson reported missing. Nevertheless, Waleyko alleges that on
April 14, the Digital Engineering Division Head -- a "Mr.
- 4 - McCarthy" -- and Bodana investigated Nelson's claims and
questioned Waleyko about the code files. Additionally, sometime
after Nelson's report, Anderson allegedly told Christopher
DelMastro, the Code 45 Department Head, that "he had concerns that
[Waleyko] was an insider threat" based on Nelson's accusations.
As with the Navy's investigation into Gallagher's
accusations of misconduct, Waleyko alleges that the Navy unfairly
disciplined him based on Nelson's incorrect report. Specifically,
he asserts in his complaint that "females would have been asked
about where the code was prior to any report being made about
alleged misconduct" and that "[n]o female was subjected to similar
investigations after it was already proven the conduct being
investigated was not true." Waleyko also contends that while
Nelson "remains employed and was not disciplined," as a male,
"[Waleyko] would have been impacted by negative consequences" had
he lodged a similarly false accusation against another employee.
Finally, Waleyko claims that on some other occasion "it
was alleged that [he] was emotionally unstable" because he wept in
his supervisor's office. Waleyko alleges that he was "investigated
over claims he might be an insider threat" because of this episode.
He further maintains that "[s]uch an investigation would not have
been done if [he] were a female and crying in his supervisor's
office, as [he] knows of numerous women who have cried at work and
- 5 - were not investigated for being emotionally unstable and an insider
threat."
Waleyko alleges that he was asked to choose between
elective resignation or termination, and he opted to resign. In
June 2022, Waleyko received a termination letter signed by
DelMastro. Waleyko maintains, however, that his "termination was
pretextual and the reasons provided on the notice of termination
were a pretense for gender discrimination." He alleges that
"DelMastro's [sic] stated to Ms. Bodana that" Waleyko was
terminated due to Gallagher's complaints about his conduct,
Nelson's accusations of code deletion, and "allegations [that he]
was an insider threat." Waleyko adds that, at some other point,
McCarthy gave Bodana essentially the same explanation for his
termination. Still, Waleyko contends that "[n]o female would have
ever been terminated based on these allegations alone" and that
these complaints against him "are allegations based on
stereotypical male-based behavior."
B.
Following his termination and after failing to obtain
relief through an Equal Employment Opportunity counselor, Waleyko
filed a complaint with the Department of the Navy. The Department
of Defense's Investigations and Resolutions Directorate conducted
a formal investigation of Waleyko's complaint and issued a final
agency decision in February 2023.
- 6 - Waleyko then filed this action in the District of Rhode
Island in May 2023, asserting one count of sex-based discrimination
in violation of Title VII and seeking monetary damages. After
initial skirmishing and the filing of an amended complaint, the
district court granted the Navy's motion to dismiss in February
2024, concluding that Waleyko "failed to specifically describe
instances of disparate treatment based on his gender and thus
fail[ed] to state a claim" of sex discrimination under Title VII.
Waleyko v. Del Toro, 719 F. Supp. 3d 184, 192 (D.R.I. 2024).
This appeal followed.
II.
We review de novo a district court's dismissal of a
complaint for failure to state a claim upon which relief can be
granted. Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir.
2009). "To survive dismissal, the complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face." Frese v. Formella, 53 F.4th
1, 5-6 (1st Cir. 2022) (citation modified); see also Fantini, 557
F.3d at 26 ("[A] complaint must contain 'enough facts to raise a
reasonable expectation that discovery will reveal evidence'
supporting the claims." (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007))). In this context, "'[p]lausibly' does
not mean 'probably,' but 'it asks for more than a sheer possibility
that a defendant has acted unlawfully.'" Smith & Wesson Brands,
- 7 - Inc. v. Estados Unidos Mexicanos, 605 U.S. --, --, 145 S. Ct. 1556,
1565 (2025) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
And while we "indulg[e] all reasonable inferences in [the
plaintiff's] favor," we do not accept a complaint's "bald
assertions" and "unsubstantiated conclusions." Fantini, 557 F.3d
at 26 (first quoting Nisselson v. Lernout, 469 F.3d 143, 150 (1st
Cir. 2006); and then quoting Gagliardi v. Sullivan, 513 F.3d 301,
305 (1st Cir. 2008)); see also Medina-Velázquez v.
Hernández-Gregorat, 767 F.3d 103, 108 (1st Cir. 2014) (applying
"two-step approach" of constructively stripping complaint of
conclusory allegations and assessing claim plausibility based only
on surviving allegations).
Title VII prohibits employers from discharging an
employee "because of such individual's race, color, religion, sex,
or national origin." 42 U.S.C. § 2000e-2(a)(1). To state a claim
of sex discrimination under Title VII, a complaint "must plausibly
allege that the plaintiff experienced an adverse employment action
taken on the basis of [his] gender." Morales-Cruz v. Univ. of
P.R., 676 F.3d 220, 224 (1st Cir. 2012). If, however, "the factual
allegations in the complaint are too meager, vague, or conclusory
to remove the possibility of relief from the realm of mere
conjecture, the complaint is open to dismissal." Id. (quoting SEC
v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc)). Put
another way, based on only the concrete facts alleged and
- 8 - reasonable inferences therefrom, the complaint must support a
plausible finding that the adverse employment action was "taken
'because of'" the plaintiff's sex. Frith v. Whole Foods Mkt.,
Inc., 38 F.4th 263, 271 (1st Cir. 2022) (quoting Bostock v. Clayton
Cnty., 590 U.S. 644, 656-57 (2020)); see also Sepúlveda-Villarini
v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010) ("The
make-or-break standard . . . is that the combined allegations,
taken as true, must state a plausible, not a merely conceivable,
case for relief.").
Waleyko essentially alleges that the Navy mishandled
each of the three disciplinary episodes detailed above because of
his sex and that those events collectively led to his termination.1
But Waleyko's allegations tying the Navy's actions to his sex are
wholly of the speculative variety that we ignore at this stage,
see Smith & Wesson, 605 U.S. at --, 145 S. Ct. at 1568, and once
1Waleyko variably enumerates the Navy's proffered reasons for his termination, counting two sets of three articulated by Navy personnel in his complaint while enumerating the list at five reasons at oral argument. Neither Waleyko nor the government supplied his termination letter to the district court. "Viewing the complaint holistically," García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013), we read the complaint to allege that three events collectively spurred his termination: (1) the investigation into Waleyko's interpersonal behavior, triggered by Gallagher's complaints; (2) the investigation into whether he deleted the Warfare Center's code files, triggered by Nelson's report; and (3) Waleyko's crying in a supervisor's office, which he alleges led to him being "investigated over claims he might be an insider threat."
- 9 - constructively stripped of those speculative allegations as it
must be, see Medina-Velázquez, 767 F.3d at 108, Waleyko's complaint
is devoid of any assertions of facts that plausibly indicate a
causal nexus between his sex and termination. See Frith, 38 F.4th
at 271. On appeal, Waleyko advances three readings of his
complaint that he contends support such an inference, and we
address each in turn.
On appeal, Waleyko primarily grounds his arguments in
his complaint's purported comparisons between his treatment by the
Navy and how he believes the Navy would treat similarly situated
women. Because these comparisons all either rely on Waleyko's
unfounded suppositions or improperly compare apples and oranges,
however, they supply no basis to infer the requisite connection
between Waleyko's sex and termination.2
Throughout his complaint, Waleyko compares the Navy's
three investigations and eventual termination of him with
unsupported hypotheses of how the Navy "would" conceivably handle
similar accusations of its female employees, but he almost
Of course, we do not suggest that such comparator evidence 2
is required to survive a motion to dismiss a Title VII claim. See Frith, 38 F.4th at 274 n.10. We only hold that, to the extent Waleyko relies on the Navy's allegedly disparate disciplinary treatment of female employees to indicate that his termination was motivated by his sex, such an inference finds no support in the few non-speculative allegations to that effect in his complaint.
- 10 - completely foregoes alleging that the Navy in fact treated any of
its female employees differently. Instead, the complaint attempts
to tether the Navy's treatment of Waleyko to his sex by asserting,
inter alia, that "a proper investigation [into the sexual
harassment accusations] would have been conducted" were he a
female, that "an investigation [into his emotional episode] would
not have been done" were he a female, that "females would have
been asked" about the missing code files, that "[n]o female would
have ever been terminated based on" allegations of sexual
harassment alone, that "[n]o female would have been terminated"
for suggesting that she carpool with a coworker, and that Navy
personnel "would never have used [an unwanted offer to carpool] to
terminate a female" (emphasis added). In every comparison but
two, which we address below, Waleyko's comparisons are entirely
speculative and do not assert any actual disparate treatment as
such a comparator analysis requires. See Ray v. Ropes & Gray LLP,
799 F.3d 99, 114 (1st Cir. 2015). Rather, as his phrasing makes
clear, Waleyko merely supposes that the Navy "would" treat a woman
differently in the hypothetical event that one ever landed in the
same situation as he did.3 Such prognostications are precisely
In many respects, Waleyko further undermines the 3
plausibility of his comparator theory by affirmatively acknowledging among his allegations that some of his comparators do not exist. For example, in describing the Navy's response to Gallagher's sexual harassment accusations, Waleyko asserts that "[t]hese sorts of allegations were not made against women in
- 11 - the "conclusory" kinds of allegations that remain in the "realm of
mere conjecture" and accordingly receive no credit in evaluating
a motion to dismiss. Morales-Cruz, 676 F.3d at 224 (quoting
Tambone, 597 F.3d at 442); accord Smith & Wesson, 605 U.S. at --,
145 S. Ct. at 1568.
His conjectural suppositions aside, Waleyko does
maintain that Nelson is a similarly situated employee whose
dissimilar treatment by the Navy for her own alleged misconduct
permits an inference of bias. As Waleyko alleges in his complaint,
Nelson was "not discipline [sic] or terminated for false statements
as a male would have been" after she made the false report about
Waleyko deleting code files. He goes on to allege that "if [he],
a male, had made statements to the U.S. Navy that were proven
false, such as Ms. Nelson alleged against him, he would have been
impacted by negative consequences, such as termination or
discipline yet Ms. Nelson remains employed and was not
disciplined."
This comparison is inapt, however, as the conduct that
Waleyko attributes to himself and to Nelson is meaningfully
[C]ode 45, and allegations of this type, when they were made, were always made by women against men" (emphasis added). Similarly, with respect to the missing code files, Waleyko admits in his complaint that Nelson's report was "not the type of allegation which was ever made against females in the department" (emphasis added).
- 12 - distinct. Nelson, in Waleyko's telling, knowingly lodged a false
accusation against him, while Waleyko was accused of deleting the
Warfare Center's code files. Waleyko does not allege that the
converse of either is true -- either that he falsely accused a
coworker of misconduct or that Nelson was accused of sabotaging
work product. Thus, given the asymmetry of their respective
conduct at issue, it follows that the Navy's reaction to each would
differ, and the fact that Nelson was not "discipline[d] or
terminated" in the same manner as Waleyko has no bearing on whether
their disparate treatment corresponded with their sexes. See Diaz
v. City of Somerville, 59 F.4th 24, 33 (1st Cir. 2023) ("For a
comparison to be apt, 'apples should be compared with apples.'"
(quoting Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19 (1st
Cir. 1989))).
Attempting to make a similar showing of disparate
treatment with respect to the episode in which he cried in his
supervisor's office, Waleyko also alleges that he "knows of
numerous women who have cried at work and were not investigated
for being emotionally unstable and an insider threat" as he asserts
that he was. But Waleyko's allusion to "numerous women" is fatally
unspecific, as he does not allege sufficient details to plausibly
infer that they were similarly situated to him. Waleyko's
allegation requires one to speculate whether these women were even
employed at the Warfare Center, much less in the same job function
- 13 - or under the same probationary status as Waleyko. His comparison
is thus too "vague" to ground a "reasonable" inference that the
Navy handled his emotional episode differently because he was a
male. Morales-Cruz, 676 F.3d at 224 (quoting Tambone, 597 F.3d at
442); accord Fantini, 557 F.3d at 26.
In his only other attempt to compare the Navy's alleged
disparate treatment of male and female employees, Waleyko sets
forth in his complaint two apparent disparities in aggregate
employment outcomes for men and women at the Warfare Center, noting
that eleven out of twelve "separations from the Command" from
January 1, 2021 to July 1, 2022 were by men, and that ten other
employees, "most of whom were males," left "Project Harbinger"
before Waleyko. But these disparities in departures, even if true,
do not support a plausible inference of discrimination, as Waleyko
supplies no base rate against which these aggregated numbers can
be compared. Cf. Wards Cove Packing Co. v. Atonio, 490 U.S. 642,
650-51 (1989) (emphasizing that the "proper comparison" is between
composition of plaintiff's group and a control group in
disparate-treatment claims reliant on statistical disparities).
In both cases, these figures say little to nothing about the role
of the former employees' sex in their departure absent comparison
to the overall gender division of the "Command" and "Project
Harbinger," respectively. Without knowing what share of employees
on either team were male, we cannot draw a plausible inference as
- 14 - to whether a given number of departures from those teams was
suspiciously disproportionate to the makeup of the teams
themselves.4
Separately, Waleyko emphasizes on appeal alleged defects
in the Navy's investigative processes, essentially arguing by
analogy to Menaker v. Hofstra University, 935 F.3d 20 (2d Cir.
2019), that irregularities in the Navy's procedural handling of
the complaints against him were so egregious that the
irregularities themselves demonstrate that his treatment was
sex-based. Menaker's is inapplicable here, however, and in any
event, the alleged facts of Waleyko's termination are not
comparable to those of Menaker.
In Menaker, the defendant university terminated the
employment of an eponymous athletic coach after he was accused of
sexual harassment by a student-athlete. 935 F.3d at 27-29.
Menaker sued, alleging Title VII and related state-law claims, and
the district court dismissed pursuant to Rule 12(b)(6). Id. at
29. Reversing the district court, the Second Circuit held that
4To be clear, we also do not suggest that Waleyko was obligated to present statistical proof of disparate treatment. Ames v. Ohio Dep't of Youth Servs., 605 U.S. --, --, 145 S. Ct. 1540, 1547 (2025). We merely note that Waleyko's statistically-grounded assertions supply no alternative basis on which to infer a nexus between his sex and termination.
- 15 - Menaker had sufficiently pled a plausible Title VII case by
alleging facts that "reflect a clearly irregular investigative and
adjudicative process" prior to his termination. Id. at 34. In
particular, the Second Circuit highlighted three types of
irregularities in Menaker's termination that plausibly showed the
university's bias: (1) the university's failure to interview
witnesses supplied by Menaker; (2) university officials' express
acknowledgment that the evidence weighed against his termination;
and (3) university officials' significant deviation from written
university policies and procedures for adjudicating his
termination. Id. at 34-35. The Second Circuit concluded that
Menaker's termination "under such circumstances strongly suggests
the presence of bias." Id. at 35.
In our only case to consider Menaker, however, we did
not adopt its reasoning as an alternative to the causal nexus
requirement, as "procedural errors are not inevitably a sign of
sex bias." Doe v. Stonehill Coll., Inc., 55 F.4th 302, 334 (1st
Cir. 2022).5 Rather, a plaintiff alleging that procedural
irregularities in a defendant's investigative practices
demonstrate its discriminatory animus must still allege how the
While we considered Menaker in the Title IX context in 5
Stonehill College, see 55 F.4th at 334, Stonehill's reasoning applies with equal force here, as the relevant standards governing sex-based discrimination claims under Title VII and Title IX are the same. Ing v. Tufts Univ., 81 F.4th 77, 82 (1st Cir. 2023).
- 16 - "proceedings [were] plausibly affected by sex bias" and are not
attributable to "other plausible reasons" like "ineptitude,
inexperience, and sex-neutral pro-complainant bias." Id. (third
quoting Doe v. Samford Univ., 29 F.4th 675, 692 (11th Cir. 2022)).
Thus, Waleyko must not only allege that the Navy's disciplinary
processes were deficient; he must allege concrete facts supporting
a plausible inference that said deficiencies were caused by the
Navy's anti-male bias. He does not.
Here, Waleyko rests much of his argument about the Navy's
procedural deficiencies on its continued investigation of the
Warfare Center's missing code files after they were located. But
the Navy's continued investigation into a report of missing code
files, even if since resolved as Waleyko contends and therefore
"considered in the light most favorable to" him, is readily
susceptible to several "obvious alternative explanation[s]."
Frith, 38 F.4th at 275 (second quoting Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 9 (1st Cir. 2011)). For example, given
the obvious sensitivity of its weapons-related work, the Navy has
a strong interest in understanding the impetus for Nelson's report
that files related to that work were interfered with, even if they
were not, to ensure that such a mistake does not recur. Gaining
that understanding could reasonably require undertaking certain
investigative measures, such as interviewing Waleyko, the subject
of the false report.
- 17 - Likewise, with respect to the sexual harassment
investigation, Waleyko's account is itself internally
inconsistent, as he both alleges that "he was never told what
exactly was being alleged against him" and was "never . . . asked
any questions as to Gallagher's allegations" yet also recounts one
or more meetings with his supervisor about Gallagher's accusations
in which he "became aware" of their substance and was
"asked . . . about his past interactions with Ms. Gallagher" and
"if he had forced Ms. Gallagher to carpool with him." Given his
own acknowledgments in the complaint that he participated in an
investigation, Waleyko's allegation that one never took place is
inherently implausible, much less his assertion that there was no
investigation because of the Navy's discriminatory animus.
Moreover, even if we adopted without reservation the per
se rule that Waleyko purports to glean from Menaker, the Navy's
investigations here -- even as Waleyko characterizes them -- do
not share the irregularities that the Second Circuit said were
indicative of bias in Menaker. First, Waleyko expressly concedes
that none of the procedural irregularities he alleges are "directly
related to a written policy of the Defendant," whereas the
defendant university in Menaker had flatly abandoned its
applicable policies. See 935 F.3d at 36. Second, while Waleyko
now complains that the Navy's investigation into Gallagher's
accusations against him was not exhaustive, he concedes that he
- 18 - was interviewed by Navy personnel about both his interactions with
Gallagher and about the missing code files, and he does not allege
that the Navy declined to interview other witnesses that he
requested. Rather, he alleges that other witnesses exist who were
not interviewed, but not, notably, that the Navy knew of them as
potential witnesses and declined to do so as the defendant did in
Menaker. See id. at 34. And third, nowhere in his complaint does
Waleyko allege that any Navy officials knew that the evidence
counseled against his termination like in Menaker. See id.
Waleyko seemingly attempts to characterize the Navy as
demonstrating the same willful ignorance by noting that another
employee "easily found the files and ran the code" after "he heard
about" the related accusation against Waleyko. But Waleyko does
not allege that this employee had any contact with those
responsible for investigating the accusation, nor does his
complaint clearly allege that those responsible for his
termination knew of that employee's successful location of the
code at the time that they interviewed Waleyko. Thus, Waleyko's
allegations are distinguishable from those in Menaker, as they do
not reveal any affirmative effort by the Navy to impair or
contradict its own investigation.
C.
Finally, Waleyko attempts to cast his challenge as a
gender-stereotyping claim, asserting that all the labels he
- 19 - alleges being assigned by Navy personnel -- "sexual harasser,
stalker, [having] an 'active shooter' vibe, . . . code stealer,
and . . . insider threat within a military environment" -- are
typically associated with men. However, "terms that convey only
gender-neutral meanings are insufficient to anchor a
gender-stereotyping claim," particularly when "the supposed
stereotype of which the plaintiff complains is not one that, by
common knowledge or widely shared perception, is understood to be
attributable to" the plaintiff's gender. Morales-Cruz, 676 F.3d
at 225. Here, all the labels that Waleyko references in his
complaint are gender-neutral. Moreover, we know of no legal
authority recognizing commonly held stereotypes of men as more
likely to "steal[]" "code" or pose an "insider threat within a
military environment" as Waleyko construes them. In sum, Waleyko's
complaint critically fails to allege any gender-based stereotype
on which the Navy acted in asking him to resign from his
probationary position, foreclosing a gender-stereotyping claim.
III.
For the foregoing reasons, we affirm.
- 20 -