Daugherty v. Metropolitan Atlanta Rapid Transit Authority, 76347

• Citation: 371 S.E.2d 677,187 Ga.App. 864
• Decision Date: 15 July 1988
• Docket Number: No. 76347,76347
• Parties: , 4 A.D. Cases 1315 DAUGHERTY v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
• Court: Georgia Court of Appeals

Page 677

371 S.E.2d 677

187 Ga.App. 864, 4 A.D. Cases 1315

DAUGHERTY v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.

No. 76347.

Court of Appeals of Georgia.

July 15, 1988.

Kathryn M. Zickert, Decatur, for appellant.

Michael G. Frick, Melinda K. Wells, Atlanta, for appellee.

BANKE, Presiding Judge.

Daugherty sued the Metropolitan Atlanta Rapid Transit Authority (MARTA), alleging that it had unlawfully discharged him from his employment as a transit policeman in violation of the Georgia Equal Employment for the Handicapped Code, OCGA § 34-6A-1 et seq. He also sued a physician retained by MARTA, Dr. Tom S. Howell, Jr., seeking damages for medical malpractice and tortious interference with his employment based on a medical opinion the latter had given to MARTA, upon which MARTA had relied in discharging him. MARTA was granted summary judgment in the action, prompting Daugherty to file this appeal.

The appellant applied for employment as a MARTA transit policeman in 1985, having been employed as a security guard at Emory University since 1980. On September 12, 1985, he underwent a pre-employment physical examination, during the course of which he revealed that he was taking medication for a seizure disorder. A notation to that effect was placed on his examination form; and the printed designation, "Class C, Requires Evaluation by Review Committee," was circled accordingly. Included as part of the appellant's application was a letter from his neurologist, Dr. Wallace, stating: "I have treated Mr. Mark Daugherty since 1971. He has a seizure disorder that is under good control with medication. He has not had a seizure since 1982.... I feel that his seizures are in excellent control and feel that he is employable without any limitations."

The appellant was offered employment as a MARTA transit policeman and began work on September 30, 1985. On or about that same date, MARTA's employment manager, Ms. Yvonne Powers, reviewed his application file, observed that he had received a "Class C" rating on his pre-employment physical, and consequently arranged, as a matter of course, for him to undergo further medical evaluation by Dr. Howell, a specialist in occupational medicine whose clinic was under contract with MARTA to provide such medical services. In the meantime, the appellant's supervisor was instructed to remove him from active duty as a transit policeman, and the appellant was given a temporary assignment in the radio room.

Dr. Howell interviewed the appellant on October 24, 1985. The following day, he wrote a letter to Ms. Powers noting that the appellant was taking 1800 mg. of Tegratol and 240 mg. of phenobarbitol daily and stating that his "demeanor suggest[ed] a certain amount of lethargy." Asked during his deposition to explain this remark, Dr. Howell responded that during the course of his interview with the appellant, he was "almost appalled by the fact that Mr. Daugherty was sitting in the chair directly across from me and almost went to sleep ..., in my opinion, on two occasions while I was discussing him." Dr. Howell concluded in his letter to Ms. Powers that he "would have some difficulty ... accepting [the appellant] as a security guard or transit policeman which would involve operating a company vehicle and carrying a weapon." He suggested that additional information be obtained from the appellant's personal physician, Dr. Wallace, and also from Dr. Donald Bickers, whom he described as "an authority with this type of problem."

Dr. Howell testified that he subsequently discussed his concerns with Dr. Bickers, a neurosurgeon with special expertise in epilepsy, and that Dr. Bickers supported his opinion that a person taking the type and amount of medication being taken by the appellant should not be carrying a gun in a law enforcement capacity. On December 5, 1985, Dr. Howell wrote a second letter to Ms. Powers, informing her of his consultation with Dr. Bickers and stating: "At the present time, based on information available, I would not consider Mr. Daugherty to be a satisfactory candidate to perform work as a transit policeman." On the basis of this adverse recommendation, the appellant's employment was terminated. Held:

OCGA § 34-6A-4(a) specifies, in pertinent part, that "[n]o employer shall fail or refuse to hire, discharge, or discriminate against any handicapped individual with respect to wages, rates of pay, hours, or other terms and conditions of employment because of such person's handicap unless such handicap restricts that individual's ability to engage in the particular job or occupation for which he or she is eligible...." (Emphasis supplied.) Similarly, subsection (b) of § 34-6A-3 specifies: "Nothing in this chapter shall be construed to prohibit the rejection of an applicant for employment on the basis of: (1) A handicap which interferes with a person's ability to perform assigned job duties adequately...." Finally, subsection (c) of OCGA § 34-6A-3 specifies: "Nothing in this chapter shall be construed to prevent or otherwise make illegal any employment decision affecting any person where such decision is based upon an employer's good faith reliance upon a professional opinion rendered by a licensed physician, rehabilitation specialist, psychologist, physical therapist, dentist, or other similar licensed health care professional concerning that person."

In Spicer v. Martin-Brower Co., 177 Ga.App. 197, 338 S.E.2d 773 (1985), this court held that "in the limited instance 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." However, the court went on to hold that where the employer presented evidence in support of its motion for summary judgment indicating that it had not acted out of animosity in relying upon the medical opinion of its own medical consultant in preference to a contrary opinion offered by the employee's personal physician, but had instead acted out of concern for potential safety problems posed by the employee's medical condition, the burden shifted to the employee to come forward with contrary evidence from which it could be inferred that a discriminatory motive was in fact involved. Because no such contrary evidence was offered, the grant of the employer's motion for summary judgment was affirmed.

In the case before us, as in Spicer, the employer has submitted evidence tending to establish without dispute both that its employment decision was made in reliance upon the professional recommendation of a licensed physician and that its preference of that physician's opinion over the contrary opinion of the employee's personal physician was based upon safety concerns rather than upon an unlawful, discriminatory motive. Indeed, as pointed out by MARTA, the safety concerns involved in the present case are even more substantial than those involved in Spicer in that they implicate the public at large rather than merely the appellant and his fellow employees. While the appellant contends that material issues of fact are created by certain conflicts in the testimony of Ms. Powers and by evidence that MARTA did not follow its own established procedures with respect to the convening of its Medical Review Committee, none of these purported inconsistencies or irregularities suggests the existence of an unlawful, discriminatory motive. Instead, it appears without dispute that 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 and that the subsequent decision to terminate his employment as a transit policeman was made in direct reliance upon Dr. Howell's evaluation. A dispute as to an immaterial fact or one which has no legal significance to the outcome of the case does not preclude summary judgment. See Barnett Mtg. Trust v. Woods Mill, Ltd., 151 Ga.App. 133, 259 S.E.2d 140 (1979); Wood v. Metro. Atlanta Girls' Club, 141 Ga.App. 473, 233 S.E.2d 862 (1977).

JUDGMENT AFFIRMED.

BIRDSONG, C.J., DEEN and McMURRAY, P.JJ., and CARLEY, SOGNIER and POPE, JJ., concur.

BENHAM and BEASLEY, JJ., dissent.

BEASLEY, Judge, 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...