dissenting.
OCGA § 34-6A-1 et seq., the Georgia Equal Employment for the Handicapped Code, implements the public policy of this State to protect those with handicaps from discriminatory employment practices. Ga. L. 1981, p. 1843, § 1. “The statute is obviously a balancing of the interests of society in providing an opportunity for handicapped people to work, and the interests of employers to maintain the freedom to hire and maintain employees who can best perform the duties of a particular job. . . . An employer is not required under this law to hire or maintain a person who cannot perform the duties of the job because of that person’s handicap.” Dugger v. Delta Air Lines, 173 Ga. App. 16, 18 (325 SE2d 394) (1984).
OCGA § 34-6A-3 permits inquiries to job applicants regarding the existence and extent of a handicap and allows rejection of a prospective employee who has a handicap which interferes with a person’s ability to perform job duties adequately. Subsection (c) expressly frees from constraint employment decisions which are “based upon an employer’s good faith reliance upon a professional opinion rendered by a licensed physician” concerning the handicapped person.
The question here is whether MARTA, which stands on subsection (c) for its defense, established as a matter of law that its decision was so based, so that it is entitled to judgment without further inquiry. Dr. Howell’s motion for summary judgment, with respect to claims of medical malpractice and tortious interference with employment contract rights, was denied.
We must start with the formula to determine the existence of a plaintiff’s prima facie case on trial which was adopted in Shaw v. W. M. Wrigley, Jr. Co., 183 Ga. App. 699, 700 (1) (359 SE2d 723) (1987). In order to establish disparate treatment plaintiff must show that he 1) is a member of the protected class, 2) meets the objective qualifications of the job, 3) was directly or constructively terminated, ánd 4) there was a nexus between the termination and the handicap. *868Once these criteria have been met, “a rebuttable presumption arises that the employer/defendant unlawfully discriminated against the plaintiff.”
The employer must set forth a legitimate, nondiscriminatory reason for plaintiff’s rejection or discharge. “The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if defendant’s evidence raises a genuine issue of fact whether it discriminated against plaintiff.” Plaintiff then must show “the proffered reason was not the true reason for the employment decision.” Id. at 700.
Spicer v. Martin-Brower Co., 177 Ga. App. 197 (1) (338 SE2d 773) (1985), recognized that “where conflicting professional opinions are properly before the employer, questions of fact may be raised whether the employer acted in good faith in relying on one particular professional opinion, in view of the possibility that the employer’s subjective selection of one opinion in preference to another may have been the result of a discriminatory motive.”
During the trial the burden of persuading the factfinder that defendant discriminated against plaintiff remains with plaintiff at all times. Shaw, supra at 700. On motion for summary judgment, however, the burden rests upon defendant as movant to establish that no genuine issue of fact exists and here, because it relies upon the good faith defense, that it acted in good faith in relying upon Dr. Howell’s opinion, as a matter of law. Jacobsen v. Muller, 181 Ga. App. 382, 384 (4) (352 SE2d 604) (1986). “Moreover, where the evidence on summary judgment is ambiguous or doubtful, the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence.” Fiumefreddo v. Scudder, 252 Ga. 279, 283 (2) (313 SE2d 683) (1984).
Several facts stand out. Daugherty was certified by the Georgia Peace Officer Standards and Training Council (POST) as a law enforcement officer entitled to carry a weapon and had been employed in a police function by Emory University since 1980. He had a seizure disorder (epilepsy) which first manifested itself while he was an adolescent and was controlled by medication. The most recent onset was in 1982. After his discharge by MARTA, Daugherty’s certification was continued after a POST hearing which found he was not unable to perform as a peace officer. He was required to keep POST aware of his medical condition by means of an annual medical report.
Dr. Howell’s first letter which stated that plaintiff’s “demeanor suggests a certain amount of lethargy,” and his second letter which referred to Daugherty’s “mild lethargy,” stand in stark contrast to his testimony that he was “almost appalled” that in the interview Daugherty almost went to sleep. We must take the most unfavorable version of these variations. Lynch v. Waters, 256 Ga. 389 (349 SE2d 456) *869(1986); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). Moreover, Daugherty at the time was just coming off the night shift at Emory.
Dr. Howell stated in his first letter to Ms. Powers that he wished to obtain additional information from Dr. Wallace, a neurologist who had treated Daugherty since 1971 and who had unequivocally recommended Daugherty’s employment, but Dr. Howell then made no effort to consult with Dr. Wallace. Although a specialist in occupational medicine, Dr. Howell admitted that he was not an expert on seizure disorders or their treatment. Thus, he informally consulted Dr. Bickers who never personally saw Daugherty. Ms. Powers accepted Dr. Howell’s recommendation set out in his second letter without question and made no effort to determine why his view and Dr. Wallace’s were diametrically opposed. She made no effort to follow MARTA procedure and the medical review committee was not convened to make a determination whether to adopt Dr. Howell’s findings. Instead of having the committee pass upon the problem, it was ignored and bypassed without explanation.
The evidence does not require the interpretation that “it appears without dispute the case was referred to Dr. Howell for evaluation as a matter of course in response to the ‘Class C’ designation received by the appellant on his pre-employment physical. . . .” On deposition Dr. Howell testified that “[v]ery seldom are we asked to review a case” from the separate clinic which initially examined Daugherty. He related: “Class C, by definition, means that it should be reviewed by a medical review committee.” That committee was “formed by MARTA primarily to insure that we did not discriminate against someone under EEOC.” Dr. Howell sat on the committee but had no vote. The committee was functioning and within the last month had considered a Class C condition. Dr. Howell admitted that he agreed reluctantly to see Daugherty, perferring that “it take its normal course which was that it should go before the medical review committee.”
Discrimination is often subtle and good faith involves intent. In considering the totality of circumstances, several questions related to good faith are left unresolved here. One is, why was there a disregard of the medical review committee procedure called for by MARTA’s own guidelines? In the absence of any explanation, MARTA did not establish as a matter of law a good faith reliance on Dr. Howell’s opinion, especially in the face of the apparently contrary opinion of the employee’s long-standing personal physician.
Although Dr. Howell expressed the need to consult with Dr. Wallace, the applicant’s treating physician, he never did so and any mention of Wallace’s report was omitted from the second letter. Should this omission have been considered by a diligent employer who was seeking in good faith to make a non-discriminatory determination *870with regard to plaintiff’s handicap?
Decided July 15, 1988. Kathryn M. Zickert, for appellant. Michael G. Frick, Melinda K. Wells, for appellee.Ms. Powers never questioned Dr. Howell about the opposing view of Dr. Wallace nor made any effort to obtain information from Dr. Wallace regarding the basis of his opinion or its relationship to the particular job requirements in question.
Nor did Dr. Bickers, upon whose judgment Dr. Howell relied for his own final opinion, ever examine applicant or his medical record. Dr. Howell discussed the case with him and wrote to Ms. Powers that “Dr. Bickers agreed that Mr. Daugherty probably should not be a security guard and certainly stated that he felt that he [Daugherty] should not be carrying a gun.” Where there are conflicting opinions, one based upon personal examination by the treating physician and the other without any personal contact, can an employer blindly rely upon one to the exclusion of the other without any further evaluation?
All of these factors raise inferences of a lack of good faith reliance on Dr. Howell’s opinion and undermine the assertion that there was good faith as a matter of law. In the current posture of the case, where the evidence must be construed in favor of plaintiff as the party opposing the motion, summary judgment in favor of MARTA should not have been granted.
I am authorized to state that Judge Benham joins in this dissent.