Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—1st Cir.: Navy’s investigations into former scientist’s alleged harassment, deleting of code, didn’t suggest sex bias, (Jul 28, 2025)

By Marjorie Johnson, J.D.

Though he claimed Navy personnel engaged in gender-stereotyping by describing him as a sexual harasser, stalker, having an “active shooter” vibe, code stealer, and insider threat—these terms were all gender-neutral.

A district court did not err in granting the Navy’s motion to dismiss a Title VII sex-discrimination claim brought by a former scientist who resigned in lieu of termination after investigations into a coworker’s complaint that he was sexually harassing and stalking her, another female coworker’s complaint that he had deleted code that led officials to worry that he was an “insider threat,” and concerns that he was emotionally unstable after he was found crying in an office. His allegations that the Navy “would” have treated female personnel more fairly were purely speculative and the coworker who he claimed falsely stated he had deleted the code was not a proper comparator, ruled the First Circuit. Moreover, non sex-based explanations explained the alleged deficiencies in the Navy’s investigative process, and the employee’s attempt to cast his allegations as a gender-stereotyping claim failed (Waleyko v. Phelan, No. 24-1310 (1st Cir. July 25, 2025)).

In June 2020, the employee was hired to work as scientist at the Naval Undersea Warfare Center in Rhode Island. The first 17 months of his two-year probationary period were uneventful. However, during his final few months he was subjected to three disciplinary actions that he claimed were due to his being a male and male stereotypes.

Disciplinary actions. First, in March 2022, a female coworker complained that he was sexually harassing her, was “stalkerish,” and likened him to an “active shooter.” Second, in April, a different female coworker reported that he had deleted certain code files of the Warfare Center. Though another staff member found the missing files, an investigation ensued and a director expressed concerns that he was “an insider threat.” Finally, on some other occasion, he was allegedly deemed “emotionally unstable" because he wept in his supervisor's office. As a result of these incidents, he was asked to choose between resigning or being terminated, and he opted to resign.

Lower court proceedings. He sued, asserting a Title VII claim of sex discrimination. The district court granted the Navy's motion to dismiss, concluding that he failed to plausibly allege that he was forced to resign because he was a man or that similarly situated women would not have lost their jobs as a result of the same conduct.

Speculation. On appeal, he alleged that the Navy mishandled the three disciplinary episodes because of his sex and that those events collectively led to his termination. However, the First Circuit found that his attempt to tie the Navy's actions to his sex were purely speculative and did not allow an inference of bias.

While he argued that he was treated more harshly than similarly situated women, he mostly compared the Navy's investigations and his termination with his unsupported hypotheses of how the Navy “would” handle similar accusations against women without describing any specific instance in which any female employees were actually treated differently. Similarly, he did not provide any details in his contention that “numerous women” who have cried at work were not investigated for being emotionally unstable. “Such prognostications are precisely the ‘conclusory’ kinds of allegations that remain in the ‘realm of mere conjecture’ and accordingly receive no credit in evaluating a motion to dismiss.”

Coworker’s conduct not similar. The First Circuit also rejected his contention that bias could be inferred from the Navy’s more favorable treatment of the female coworker who he claimed falsely reported that he had deleted code. Her conduct was not sufficiently similar as he did not allege that he falsely accused a coworker of misconduct or that the coworker 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.”

Alleged statistics don’t suggest bias. He also alleged bias could be inferred because 11 out of 12 "separations from the Command" were by men and that most of the 10 employees who left the project were also males. However, because he failed to provide any information concerning what share of the pool were male, no plausible inference could be made as to whether the alleged number of departures “was suspiciously disproportionate,” held the First Circuit.

Investigation processes didn’t suggest bias. The First Circuit also rejected his reliance on Second Circuit precedent in contending that sex discrimination could be directly inferred from the alleged irregularities in the Navy's investigative processes. It was not enough to allege that there were procedural irregularities in the Navy’s investigative practices. Rather, he “must allege concrete facts supporting a plausible inference that said deficiencies were caused by the Navy's anti-male bias,” which he failed to do.

Indeed, there were non sex-based explanations for the Navy's alleged procedural deficiencies in its continued investigation of the Warfare Center's missing code files after they were allegedly located. “For example, given the obvious sensitivity of its weapons-related work, the Navy has a strong interest in understanding the impetus for [the female coworker’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.” Moreover, his own acknowledgement that he participated in the Navy’s investigation into his coworker’s sexual harassment investigation made his allegation that one never took place inherently implausible.

Irregularities not significant. Even if the First Circuit were to adopt a per se rule that bias could be inferred solely from irregularities in the investigative process, his allegations still failed. Notably, he conceded that none of the procedural irregularities were directly related to a written policy and that he was interviewed about the coworkers’ allegations. He also did not claim that the Navy declined to interview other witnesses he requested or that any officials knew that the evidence counseled against his termination.

Gender-neutral meanings. Finally, the First Circuit rejected his attempts to cast his challenge as a gender-stereotyping claim by asserting that the labels Navy personnel used to describe him—sexual harasser, stalker, having an “active shooter” vibe, code stealer, and insider threat—were typically associated with men. Because all these terms were gender-neutral, he failed to plausibly allege any gender-based stereotype on which the Navy acted in asking him to resign from his probationary position.

The case is No. 24-1310.

Judge: Howard, J.

Attorneys: Sonja Linnea Deyoe (Law Offices of Sonja L. Deyoe) for Matthew Waleyko. Bethany N. Wong, U.S. Attorney's Office, for John Phelan.

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