Falcon v. Department of Child Safety

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Dan Falcon,
Plaintiff,
v.
Department of Child Safety,
Defendant.
______________________________________
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CV 25-00708-TUC-AMM (MAA)
REPORT AND
RECOMMENDATION
Pending before the court is the defendant’s motion to dismiss pursuant to Fed.R.Civ.P
12(b)(1) and 12(b)(6), filed on February 13, 2026. Doc. 16. The plaintiff filed a response on
February 23, 2026. Doc. 17. The defendant filed a reply on March 3, 2024. Doc. 18.
The action was referred to the Magistrate Judge for a Report and Recommendation in
accordance with the Local Rules of Practice. Doc. 14.
The plaintiff in this action, Dan Falcon, worked in the Department of Child Safety.
Doc. 1, p. 5. He alleges that he was treated poorly and was dismissed on September 5, 2025.
Doc. 1, p. 6. He claims he suffered illegal discrimination pursuant to Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Immigration
and Nationality Act. Doc. 1, p. 3.
In the pending motion, the defendant, Department of Child Safety (DCS), argues the
Complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) because the court lacks subject
matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon
which relief can be granted.
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The Magistrate Judge recommends that the District Court, after its independent review
of the record, grant the motion to dismiss with leave to amend. This court has no jurisdiction
over a claim brought pursuant to the Immigration Reform and Control Act. The defendant
Department of Child Services (DCS) is a non-jural entity and may not be sued. Sovereign
immunity bars Falcon’s Age Discrimination in Employment Act claim. The Complaint fails
to allege a proper claim for discrimination pursuant to Title VII.
Standard of Review: Rule 12(b)(1)
A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction to entertain
a claim. Fed.R.Civ.P. When analyzing a facial challenge to the court’s jurisdiction, such as
the one here, the court accepts as true the factual allegations contained in the complaint and
draws all reasonable inferences in the plaintiff’s favor. Doe v. Holy See, 557 F.3d 1066, 1073
(9 Cir. 2009).th
The Immigration Reform and Control Act
DCS argues pursuant to Rule 12(b)(1) that Falcon’s claim under the Immigration
Reform and Control Act (“IRCA”) must be dismissed because the governing statute does not
give the district court jurisdiction over an IRCA action. Doc. 16, pp. 3, 7; Fed.R.Civ.P. The
court agrees.
“[The] IRCA prohibits citizenship status and national origin discrimination in hiring and
firing employees, with certain exceptions.” Cameron v. Bellevue Police Dep’t, 2024 WL
4592892, at *3 (W.D. Wash. Oct. 28, 2024) (citing 8 U.S.C. § 1324b.3). “Before suing under
IRCA, [a plaintiff] must first file a claim with the Office of Special Counsel for Immigration
Related Unfair Employment Practices (‘OSC’).” Id. (citing 8 U.S.C. § 1324b(b)(1)). “He
may initiate a private action only if the OSC fails to file a complaint before an administrative
law judge within 120 days of receiving his claim.” Id. (citing 8 U.S.C. § 1324b(d)(2)). “But
crucially, that private action must be brought before the Office of the Chief Administrative
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Hearing Officer (‘OCAHO’).” Id. “Only after receiving a final order from OCAHO may [the
plaintiff] have his claim under these statutes reviewed in an Article III federal court, and even
then, he must petition the Ninth Circuit directly for review.” Id. (citing 8 U.S.C. §
1324b(i)(1)). The district court has no jurisdiction over an IRCA claim.
Standard of Review: Rule 12(b)(6)
“A Rule 12(b)(6) motion tests the legal sufficiency of the claim.” Cook v. Brewer, 637
F.3d 1002, 1004 (9 Cir. 2011); Fed.R.Civ.P. The claim must allege a legally cognizableth
theory of relief and include factual allegations sufficient to support that theory. Hinds Invs.,
L.P. v. Angioli, 654 F.3d 846, 850 (9 Cir. 2011).th
“All allegations of material fact are taken as true and construed in the light most
favorable to the nonmoving party.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir.), opinion amended on denial of reh’g, 275 F.3d 1187 (9 Cir. 2001). But the court needth
not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Id.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Hinds Invs., L.P. v.
Angioli, 654 F.3d 846, 850 (9 Cir. 2011) (punctuation modified). “Dismissal is proper whereth
there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged
under a cognizable legal claim.” Id.
Non-Jural Entity
DCS argues first that it is a non-jural entity and cannot be sued. Doc. 16, p. 4. The
court agrees.
“In Arizona, a plaintiff may sue a government entity only if the state legislature has
granted that entity the power to sue or be sued.” Neeley v. Arizona, 2022 WL 44676, at *7 (D.
Ariz. Jan. 5, 2022). “The statutory provisions under which the legislature created DCS contain
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no such powers.” Id. (citing A.R.S. §§ 8-451–8-892). “Therefore, DCS may not be sued . . .
.” Id.
Falcon provides no counter argument in his response and expresses his intention to
substitute the State of Arizona for DCS. Doc. 17.
In its reply, DCS states that it has no objection to this substitution. Doc. 18, p. 1, n. 1.
Age Discrimination in Employment Act
DCS further argues that sovereign immunity bars Falcon’s Age Discrimination in
Employment Act (“ADEA”) claim. Doc. 16, p. 6. The court agrees.
“[T]he Supreme Court has held that, in the ADEA, Congress did not validly abrogate
the States’ sovereign immunity to suits by private individuals.” Lee v. Arizona, No. CV
10-8135-PCT-JAT, 2011 WL 2580400, at *5 (D. Ariz. June 29, 2011) (citing Kimel v. Fla. Bd.
of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). “Therefore, Plaintiff’s
claims under the ADEA are barred by immunity under the Eleventh Amendment.” Id.
Title VII: Hostile Work Environment
DCS further argues that Falcon has not alleged a proper hostile work environment claim
pursuant to Title VII. Doc. 16, p. 4.
“Under Title VII, it is unlawful for an employer to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment because of
his race, color, religion, sex, or national origin.” Vasquez v. County of Los Angeles, 349 F.3d
634, 642 (9 Cir. 2003); see 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging a hostile workth
environment must allege (1) that “he was subjected to verbal or physical conduct” directed at
a protected characteristic, (2) “that the conduct was unwelcome,” and (3) “that the conduct was
sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create
an abusive work environment.” Id.
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“To determine whether conduct was sufficiently severe or pervasive to violate Title VII,
[the court will] look at all the circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9 Cir. 2003) (punctuation modified).th
In the body of his Complaint, Falcon asserts that his supervisor’s conduct was hostile,
unprofessional, and pervasive. Complaint, Doc. 1, p. 5. He alleges his supervisor “showed
her attitude by not communicating, providing zero feedback, micromanaging, [and] giving
confusing and nonsensical instructions.” Id. He explains that he was berated for minor
infractions and written up for coming back from lunch a few minutes late. Doc. 1, pp. 5-6.
He asserts that all of his co-workers were promoted from trainee to Specialist, but he was not.
Doc. 1, p. 6. Finally, he alleges that shortly after he asked the DCS EEO representative about
his failure to be promoted, he was terminated. Doc. 1, p. 6.
DCS argues that the Complaint fails to allege circumstances that rise to the level of a
hostile working environment. Doc. 16, pp. 4-5. More problematic, however, is its argument
that Falcon alleges no facts from which the trier of fact could conclude that any of the alleged
discriminatory conduct resulted from a protected characteristic. Doc. 16, p. 5. A proper Title
VII claim requires an assertion that the plaintiff suffered discriminatory conduct because of
his protected characteristics combined with sufficient facts alleged to support that assertion.
The complaint fails to allege any such facts. See, e.g., Ransom v. Mayorkas, 2025 WL
1883853, at *8 (C.D. Cal. July 7, 2025) (Plaintiff did not “state a claim for a hostile work
environment based on race” because she included “only a single reference to race in her
Complaint, alleging that she informed [a personnel official] that she has been discriminated
against because of her race and need to breastfeed.”).
Falcon asserts in his response that his supervisor used racial epithets such as “stupid
white gringo” and other hostile Spanish-language remarks. Doc. 17, pp. 3-4. When
considering a motion to dismiss, however, the court is generally limited to the four corners of
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the Complaint and the documents it incorporates. Van Buskirk v. Cable News Network, Inc.,
284 F.3d 977, 980 (9 Cir. 2002). And this allegation does not appear in the Complaint.th
Title VII: Retaliation
DCS further argues that Falcon fails to plead sufficient facts to state a claim for
retaliation under Title VII. Doc. 16, p. 5.
“To state a claim for retaliation under Title VII, a plaintiff must allege that: (1) [he]
engaged in a protected activity; (2) [his] employer “subjected [him] to an adverse employment
action; and (3) there is a causal link between the protected activity and the adverse action.
Brown v. Brennan, 2020 WL 607029, at *3 (N.D. Cal. Feb. 7, 2020) (punctuation modified);
see Ninth Circuit Jury Instruction 10.8.
In the Complaint, Falcon fails to allege that he engaged in a protected activity pursuant
to his Title VII rights. Bringing an EEO claim or grievance could qualify as a protected
activity under Title VII but only if the grievance itself raises a violation of Title VII. Brown
v. Brennan, 2020 WL 607029, at *4 (N.D. Cal. Feb. 7, 2020). The Complaint fails to make
that allegation.
Amendment
Ordinarily, if the court grants a motion to dismiss the Complaint for failure to state a
claim, the court also grants leave to amend unless “it determines that the pleading could not
possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N.
California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).
Here, Falcon has attached to his response brief a proposed Amended Complaint
indicating his intention to cure the deficiencies raised by DCS. DCS concedes in its reply brief
that the proposed Amended Complaint does state a proper claim for Title VII retaliation but
argues that Falcon’s other proposed claims should be dismissed. The court expresses no
opinion at this point as to whether the proposed Amended Complaint would survive a motion
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to dismiss. The court finds only that the present Complaint “could . . . possibly be cured by
the allegation of other facts” and leave to amend should be granted. Cook, Perkiss & Liehe,
Inc., 911 F.2d at 247.
RECOMMENDATION:
The Magistrate Judge recommends that the District Court, after its independent review
of the record, enter an order
GRANTING the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P.
12(b)(6), filed on February 13, 2026, by the defendant DCS. Doc. 16. The Complaint should
be dismissed with leave to amend.
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within
14 days of being served with a copy of this report and recommendation. If objections are not
timely filed, the party’s right to de novo review may be waived. The Local Rules permit the
filing of a response to an objection. They do not permit the filing of a reply to a response
without the permission of the District Court.
DATED this 6 day of March, 2026.th
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