The opinion of the court was delivered by: LACEY
This motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) presents the issue of whether the licensing activities of the defendants, New Jersey Board of Veterinary Medical Examiners and its named employees (hereinafter Board), come within the terms of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
The Board is charged with the duty and responsibility of regulating the practice of veterinary medicine in the State of New Jersey pursuant to N.J.S.A. 45:16-1, et seq. One of its primary responsibilities is the issuance of licenses to practice veterinary medicine in the state. N.J.S.A. 45:16-5.
The plaintiff, Monir George, submitted an application to the Board to be admitted to practice in New Jersey. This application was denied. The plaintiff then went to the Board office to discuss this matter with the executive secretary of the Board, Maurice McQuade. Subsequent to this meeting, an administrative complaint was filed with the Board by the Attorney General charging that the plaintiff had removed from the Board office a file containing various applications and credentials submitted by him in his efforts to become licensed in New Jersey. Plaintiff entered a denial of the charges. At a Board hearing, it was determined that the plaintiff had in fact taken the file from the office without authorization after his meeting with the executive secretary. Based on these findings, the Board ordered that the plaintiff's application for licensure in New Jersey be denied for a period of three years.
No appeal was taken by the plaintiff concerning this decision. However, the plaintiff instituted the present action alleging violations of Title VII. More specifically, he alleges that the Board destroyed or lost his complete file and application and that he has been discriminated against because of his national origin.
Defendants move to dismiss, arguing that they are not employers of the plaintiff, nor are they an employment agency within the meaning of those words as used in Title VII. The plaintiff takes the position that through its licensing activities the Board is an employer or an employment agency under Title VII.
The relevant portion of 42 U.S.C. § 2000e provides:
(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. . . .
(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.
As the Supreme Court has noted, the purpose of Title VII is to "assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S. Ct. 1011, 1017, 39 L. Ed. 2d 147 (1974).
To permit a covered employer to exploit circumstances peculiarly affording it the capability of discriminatorily interfering with an individual's employment opportunities with another employer, while it could not do so with respect to employment in its own service, would be to condone continued use of the very criteria for employment that Congress has prohibited.
It must be pointed out, as did the court in National Organization for Women v. Waterfront Commission of New York, 468 F. Supp. 317 (S.D.N.Y.1979), that the Sibley decision "had nothing to do with state police power." Id. at 320. Similarly, in Lavender-Cabellero v. Department of Consumer Affairs, 458 F. Supp. 213 (S.D.N.Y.1978), the court noted that Sibley did not involve a "state or city licensing agency performing a separate, and presumably necessary public, as opposed to private function, separate and apart from employment itself." Id. at 215. Both National Organization for Women, and Lavender-Cabellero held that where a governmental organization is exercising its police power, the control it exerts over a person's access to the job market does not render the governmental organization an "employer" or ...