“Speculative Comparators Are Not Enough” – The First Circuit’s Clarification of Title VII Pleading Standards in Waleyko v. Del Toro (2025)

1. Introduction

In Waleyko v. Del Toro, No. 24-1310 (1st Cir. July 25, 2025), the United States Court of Appeals for the First Circuit confronted the sufficiency of a probationary federal employee’s sex-discrimination complaint under Title VII. Matthew Waleyko, a civilian computer scientist at the Naval Undersea Warfare Center (“Warfare Center”), alleged that his elective resignation—requested at the end of his two-year probationary period—was the product of anti-male bias. The district court dismissed the action for failure to state a claim, and the First Circuit affirmed.

Although the court applied familiar plausibility doctrine (Twombly/Iqbal), its opinion breaks new ground in three respects:

It labels “speculative comparators”—hypothetical assertions about how the employer would treat women—insufficient at the Rule 12 stage.
It confines the Second Circuit’s influential “procedural irregularity” reasoning in Menaker v. Hofstra University, requiring plaintiffs to connect procedural defects to sex bias, not merely pro-complainant or haphazard decision-making.
It reiterates that statistical anecdotes devoid of a control (base-rate) group do not create an inference of discrimination.

2. Summary of the Judgment

The panel (Chief Judge Barron, Judge Lynch, Judge Howard—opinion by Judge Howard) affirmed dismissal on the ground that Waleyko’s amended complaint lacked non-conclusory facts plausibly linking his termination to his sex.

Factual allegations: Three disciplinary episodes—(a) a coworker’s sexual-harassment complaints; (b) accusations of deleting code files; and (c) an “insider-threat” investigation triggered when he cried in a supervisor’s office—allegedly culminated in a forced resignation.
Pleading defects: The complaint (i) relied on conjecture that female employees would have been treated differently, (ii) offered no genuinely comparable female employees who engaged in similar conduct, and (iii) referenced statistical disparities without baseline data.
No rescue by procedural-irregularity theory: Invoking Menaker, Waleyko argued that flawed Navy investigations themselves proved bias. The court rejected this analogy, distinguishing Menaker and reiterating that procedural errors, without more, are not “inevitably a sign of sex bias.”
No gender-stereotyping theory: Labels such as “stalker,” “active shooter,” or “insider threat” are gender-neutral and not stereotypically male attributes; thus the claim failed under Price Waterhouse-type stereotyping jurisprudence.

3. Analysis

3.1 Precedents Cited and Their Influence

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009): Provide the “plausibility” framework. The First Circuit emphasized that “plausibly does not mean probably,” but requires more than a “sheer possibility.”
Smith & Wesson Brands v. Estados Unidos Mexicanos, 145 S. Ct. 1556 (2025): Quoted for the proposition that courts ignore “speculative” allegations at the pleading stage.
Fantini v. Salem State College, 557 F.3d 22 (1st Cir. 2009); Morales-Cruz v. University of Puerto Rico, 676 F.3d 220 (1st Cir. 2012); Frith v. Whole Foods Market, Inc., 38 F.4th 263 (1st Cir. 2022): Provide First Circuit gloss on Title VII pleading and comparator analysis.
Menaker v. Hofstra University, 935 F.3d 20 (2d Cir. 2019): Plaintiff’s central authority. The First Circuit distinguished it and, echoing Doe v. Stonehill College, 55 F.4th 302 (1st Cir. 2022), declined to infer bias solely from procedural anomalies.
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989): Cited to explain why raw statistical headcounts are meaningless absent comparison to the relevant labor pool.

3.2 Court’s Legal Reasoning in Detail

Step-one: Strip conclusory allegations. Following Medina-Velázquez, the court “constructively stripped” all statements asserting—without factual support—that women would have been treated differently.
Step-two: Examine remaining facts. After excising speculation, nothing linked the Navy’s disciplinary decisions to sex. The three investigative episodes were gender-neutral workplace events.
Comparator analysis. The only identified comparator (Layna Nelson) was not similarly situated because she was accused of lying, whereas plaintiff was accused of misconduct. Apples-to-oranges comparisons cannot ground an inference of discrimination.
Statistical anecdotes. Eleven of twelve “separations” being male is meaningless without knowing the gender composition of the relevant units. Without a denominator, the statistic is “fatally indeterminate.”
Procedural-irregularity theory rejected. Unlike Menaker, there was no (a) deviation from written policy, (b) refusal to interview exculpatory witnesses known to the decision-maker, or (c) acknowledgment by officials that evidence favored the plaintiff. Alternative explanations—security concerns, thoughtless bureaucracy—were more obvious and non-discriminatory.
Gender-stereotyping claim fails. Labels such as “insider threat” are not male-specific stereotypes. Absent a stereotype unique to men, Price Waterhouse-style liability cannot attach.

3.3 Potential Impact of the Decision

Waleyko cements the First Circuit as one of the strictest enforcers of Twombly/Iqbal in Title VII litigation:

Heightened pleading precision: Plaintiffs must plead actual comparators or actual facts showing gender bias; hypothetical expectations will be ignored.
Constrained use of Menaker: The opinion signals that Menaker has limited traction outside the Second Circuit unless procedural flaws obviously manifest discriminatory motive.
Statistical allegations: Mere tallies without context are insufficient. Practitioners must provide denominator data or other analytic framing.
Gender-neutral labels: Plaintiffs cannot bootstrap gender-neutral epithets into stereotyping claims; they must show the stereotype is “commonly understood” as gendered.
Probationary federal employment: Although civil-service probationers enjoy less procedural protection, Waleyko underscores that Title VII still applies—but pleadings must satisfy rigorous plausibility standards.

4. Complex Concepts Simplified

4.1 Plausibility Standard (Twombly/Iqbal)

A complaint must contain facts that make the requested legal conclusion “plausible,” not just “possible.” Conclusory statements (e.g., “I was fired because I’m a man”) are ignored. Courts look for non-conclusory details that suggest discriminatory motive.

4.2 Comparator Evidence

To prove unequal treatment, a plaintiff often shows that similarly situated coworkers outside the protected class were treated better. “Similarly situated” generally means same supervisor, same standards, and comparable misconduct. Hypothetical coworkers or general beliefs about how the employer might act do not qualify.

4.3 Procedural-Irregularity Theory (Menaker)

The Second Circuit allows plaintiffs to infer bias where an employer deviates dramatically from its own procedures. The First Circuit now requires an additional showing: that the deviation plausibly stems from sex bias, not mere incompetence.

4.4 Statistical Proof

Statistics can show discrimination, but they must compare the protected group’s outcomes with the group’s representation in the relevant labor pool. Raw numbers alone tell little.

4.5 Gender Stereotyping

Under Price Waterhouse v. Hopkins, discrimination may occur when an employer penalizes an employee for not conforming to gender stereotypes (e.g., criticizing a woman for being “too aggressive”). The stereotype must be widely recognized as gendered.

5. Conclusion

Waleyko v. Del Toro reinforces the First Circuit’s demanding approach to Title VII pleadings. Plaintiffs must move beyond conjecture, identifying concrete comparators, contextual statistics, or procedural flaws that unmistakably reflect gender bias. The decision narrows the pathway created by Menaker, insisting on a specific nexus between irregular process and discriminatory motive. For employers, the judgment underscores the importance of consistent investigation protocols; for plaintiffs, it is a clarion call to plead facts—not hypotheticals. Ultimately, the case sharpens the rule that, in discrimination litigation, speculative comparators are not enough.