Concurring and Dissenting Opinion by
Judge Doyle :While I agree with the majority’s analysis of -what criteria must be shown in order for Complainant to establish a prima facie case of discrimination, I must respectfully dissent from -both the majority’s application of the facts to the law and its order.
The majority correctly holds that Complainant, to establish a prima facie case of employment discrimination, must prove by a preponderance of the evidence:
1. That he applied for an available position for which he was qualified.
*4422. That he was rejected under circumstances giving rise to an inference of discrimination.
The Pennsylvania Human Relations Commission (Commission) found as fact that Complainant had eighteen credit hours in early childhood education, the number required fór the position, (the selectee had twelve, making her only conditionally qualified) and further found that Complainant had “far more experience in working with very young children.” The Commission also found that the selectee had no administrative experience and, yet, was hired for a position requiring administration of the day care center as well as teaching duties.
The majority holds that this evidence is legally insufficient to establish a prima facie case of employment discrimination.' "While it is my view that we should not consider the legal sufficiency of the evidence, but instead remand the case for the Commission to do so, I must state that in my opinion the facts as found by the Commission are sufficient to establish a prima facie case as a matter of law, and accordingly, shift the burden of production to the employer to show a legitimate non-disoriminatory reason for the rejection. Department of Transportation v. Pennsylvania Human Relations Commission, 84 Pa. Commonwealth Ct. 98, 480 A.2d 342 (1984).
As I" previously " indicated, I believe a remand is required. The majority, in finding that Complainant under the new test set forth today has not established a prima facie Case of employment discrimination, has deprived the Commission of the opportunity to apply the facts it found to the correct legal standard. It has further‘deprived the Commission of the opportunity .to make additional findings which would be relevant to. determining whether the Complainant was rejected under circumstances giving rise to an inference of dis*443crimination. Until today a white male complainant would have had no way of knowing that to establish a prima facie case of employment discrimination he would need to demonstrate rejection under circumstances inferring discrimination. There is record evidence in this ease which, if believed, would tend to establish this fact. Specifically, there is testimony that Complainant was told by Ms. Rúbeo that the center was “going to make some way in order to have the black female.” RR 110. But the Commission made no finding either way as to the credibility of this testimony and we, of course, cannot determine its credibility. Id. By merely reversing, rather than reversing and remanding the case, we deprive the Commission, which is empowered to make such a determination, of the opportunity to do so. Moreover, under the legal test it incorrectly applied, the Commission in making findings relative to Complainant’s prima facie burden, would have had no reason to examine the testimony for evidence of circumstances indicating an inference of discrimination. Thus, I would remand the case and give the Commission the opportunity to do so now.