(dissenting).
I respectfully dissent. While I agree with the majority’s conclusion that the McDonnell Douglas analysis should be followed in employment discrimination cases before a commission, I disagree with its application of this analysis and its ultimate determination that a prima facie case of discrimination has not been made. I believe the case should be reversed and remanded for appointment of an independent hearing examiner.
In holding the McDonnell Douglas analysis applicable to administrative settings as well as judicial forums in cases involving claims of employment discrimination, the majority necessarily extends the Sigurdson requirement of explicit reference to the McDonnell Douglas test in a decision-maker’s findings and conclusions of law. The majority nevertheless ignores this clear requirement and applies the first step of the three-part test despite acknowledgment that “[t]he MCCR failed to utilize the McDonnell Douglas analysis either expressly or implicitly.” If McDonnell Douglas is to be applied with equal force to a commission’s decision in an employment discrimination case, this court must be provided with a basis for effective and meaningful review. As the supreme court notes in Sigurdson:
[L]ack of explicit application of the McDonnell Douglas analysis can present significant problems on review. Employment discrimination cases often involve intricate factual issues in *134which only the trial court, with its opportunity to observe witnesses firsthand, can meaningfully assess the weight and credibility of the evidence. We have traditionally accorded great deference to the trial court in making findings of fact, recognizing that much must necessarily be left to its sound judgment and discretion because it has the advantages of fully hearing the testimony and acquiring a thorough familiarity with all the circumstances of the case. * * * An appellate court cannot judge the credibility of a witness or the weight, if any, to be given to testimony. * * * Because of the significance of factual issues in employment discrimination cases and the attendant deference that must be accorded trial courts in making their determinations on these issues, it is important that the basis for the court’s decision be set forth clearly and explicitly so that an appellate court can conduct effective and meaningful review.”
Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn.1986) (citations and footnote omitted) (emphasis supplied).
In Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn.1983), the supreme court considered all three elements of the McDonnell Douglas formula despite the trial court’s failure to expressly do so in its findings and conclusions of law. The absence of express findings in that case was not dispositive:
[T]he record developed at trial is thorough, and the trial judge’s findings and explanation of his decision are sufficiently complete to permit us to review the record and the decision below within the McDonnell-Douglas framework without vacating the district court’s judgment and remanding this matter for new findings.
Hubbard, 330 N.W.2d at 443 n. 15.
Sigurdson, decided three years later, clearly holds that express findings are now required, in accordance with the line of cases represented by Moylan v. Moylan, 384 N.W.2d 859 (Minn.1986). Sigurdson, 386 N.W.2d at 721 n. 4. In Bersie v. Zycad Corp., 399 N.W.2d 141 (Minn.Ct.App.1987), we followed the mandate of Sigurdson and held that the trial court’s failure to explicitly apply the McDonnell Douglas formula in a sexual harassment case necessitated a remand for further findings.
I further believe that the facts of this case require that the Commission appoint an independent hearing examiner, even though not expressly required by Minn. Stat. §§ 363.01-.14. As the majority notes, fundamental fairness is at issue when a reviewing body acts as prosecutor, judge and jury. The potential for abuse is particularly acute in this case since the MCCR has frequently been critical of the department in the past and its ability to weigh the facts fairly is suspect. Thus, in accordance with Kroll v. Independent School District No. 593, 304 N.W.2d 338 (Minn.1981), and Ganyo v. Independent School District No. 832, 311 N.W.2d 497 (Minn.1981), I would take a stronger position and hold that absent unusual or extenuating circumstances, a hearing examiner be appointed in this case and in all contested cases involving employment discrimination at the local level. To resolve the matter entirely, the City of Minneapolis should mandate by ordinance that an independent hearing examiner be appointed in all cases where employment discrimination is claimed.
In this case, the independent hearing examiner would first determine whether Sterling has proven employment discrimination by a preponderance of the evidence. The facts are disputed on this issue and are not capable of resolution by this court as a matter of law. For example, it is not clear, as the majority suggests, that the police department took immediate and appropriate steps to preclude discrimination by Sterling’s co-workers. Sterling’s initial complaint was dismissed for lack of sufficient evidence; the investigation continued only after she expressed dissatisfaction with this response and pursued her concerns with the Minneapolis Affirmative Action Office. The product of this continued investigation was a May 1982 decision by Chief Bouza substantiating Sterling’s com*135plaint and noting that the ‘supervisors involved exhibited either ignorance, indifference or worse in handling this case and in not being aware of this intolerable situation.”
In Bersie, a case involving a claim of sexual harassment based not on sexual favors but on an offensive or abusive work environment, this court emphasized that “while apparently not constant and ongoing on a daily basis, [the harassment] was ‘sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.’ ” Bersie, 399 N.W.2d at 146 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)) (emphasis supplied). The analysis set out in Bersie, can and should be utilized in cases such as this, where an employee alleges racial discrimination due to an abusive work environment or retaliatory actions by her employer. I would therefore remand so that a trier of fact such as a hearing examiner could weigh the evidence and decide whether a prima facie case of employment discrimination has been made under Bersie.