concurring in part; dissenting in part.
I concur in that part of the majority opinion which Lolds that there was substantial evidence to support he Commissioner’s finding that the college retaliated gainst Hart. I also agree with the majority, although or different reasons and in different particulars, that *252the remedial portion of the Commissioner’s order must be reversed in part and remanded. However, I do not agree with the majority’s disposition of the principal issue in this case — whether there was substantial evidence to support the Commissioner’s findings and his conclusion that the College discriminated against Hart.
As the majority notes, the College concedes that Hart made a prima facie showing of discrimination. That means, in essence, that she proved she applied for the position, that she was qualified for the position, that she was not interviewed or hired, and that a male applicant was interviewed and hired. Those facts constitute a prima facie case under the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 US 792, 93 S Ct 1817, 36 L Ed 2d 668 (1973), and later decisions relating to burden and order of proof in discrimination cases under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.). Under McDonnell Douglas, after the complainant makes such a prima facie showing, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason” for its action. 411 US at 802. If the employer articulates such a reason, the burden is on the complainant to prove that the employer’s purported reason is not the actual reason or is a pretext.
The College argues that, here, it articulated such a reason, and that Hart did not prove that that reason was not the actual basis for the hiring action. Both parties assume that McDonnell Douglas’s definition of burden and order of proof is applicable in discrimination cases before the Commissioner. It is unnecessary for us to decide whether that assumption is correct. Under any theory of burden of proof, the issue before us is whether there was substantial evidence in the record that the College’s proffered "gender neutral” explanation for its action did not satisfactorily explain the action.
*253The crux of the College’s explanation was that its election system was based on merit, that the system esulted in an offer being made to and accepted by an ipplicant higher on the search committee’s list than lart, and that she was therefore not interviewed. Also entral to the College’s explanation was the proposi-Lon that graphic skills rather than communicative nd teaching skills were the principal criteria of selec-Lon, and that the interview process was therefore not ndispensable to an evaluation of the applicants’ com-arative qualifications.
The Commissioner found that the faculty hiring rocedures to which the College refers were in a devel-pmental phase at the time in question, that no "rigid r definite” procedures were communicated to the íembers of the committee, and that there was no Dncensus on the committee about hiring methodology.
The Commissioner also found that, to the limited xtent the procedures were nominally operational, ley were not followed. The names on the composite st were rearranged to suit the needs of the moment nd the desires of the dean of the College and the epartment chairman. For example, Orr was moved rom fourth to second on the list to enable the dean to iterview him while on a trip to California. The Col-ige offers no reason why, if the brief geographical roximity between the dean and Orr justified chang-lg his position on the list and interviewing him, Mart’s continuous proximity with the interviewers was less compelling reason for treating her similarly.
Although there was some testimony by search com-áttee members that graphic skills were the main ualification for the position, there was also testimony nr three of the four members of the committee that «aching and communicative skills were of greater Bnportance. The Commissioner so found.
The Commissioner’s ultimate finding (4) was that:
"In terms of the consideration of a candidacy, the only meaningful, significant consideration took place *254at the Search Committee interview. The denial of an interview to Hart constituted a denial of a consideration of her candidacy. I further find that given the Search Committee’s commitment to finding a candidate capable of generating and renewing enthusiasm, that the only way the presence of this quality could be detected and measured was by means of an interview.”
In my view, both the majority and concurring opinions miss the thrust of the Commissioner’s findings, which was that, from the inception, the putative search procedures were a sham. They were freely abandoned to meet every contingency except interviewing Hart, although every other qualified finalist (and one who was not qualified) were interviewed. While the College contended that visual rather than communicative skills were emphasized, with the implication that interviews were not important in evaluating the applicants, the Commissioner found from their testimony that the search committee members were concerned with communicative abilities and that an interview was therefore central to the evaluation process.
The majority and concurring opinions do not explain why the evidence fails to support the Commissioner’s findings. The majority opinion says only that certain factual findings it enumerates, some of which the Commissioner did make and son,.e of which he did not, have substantial support in the record. That is not the issue. The issue is whether the Commissioner’s findings are supported by substantial evidence, and not whether different findings we might make if we were the triers of fact also have evidentiary support. Similarly, the majority’s recitation of the art department’s history of female hiring is consistent with the evidence, but so are the Commissioner’s findings that no woman has achieved tenured status on the studio art faculty, at least since 1946, and only one woman was ever hired to fill a "tenure track” position — the kind of position Hart sought — on that faculty.
*255The concurring opinion notes that the Commission-r made no express finding of discrimination in the rocess before Barnes was offered and accepted the ab, and the opinion infers from that that the Commis-ioner found the earlier stages of the selection process o have been nondiscriminatory. It is true that terms uch as "sex discrimination” do not appear in the text f each of the findings. However, it was not necessary 3r every finding and conclusion to refer to "discrimination” for discrimination to be found and for the Dnclusion that the college discriminated against Hart 3 follow from the findings. As described in detail bove, the Commissioner found that the College’s prof-sred explanation failed to explain its action. Under IcDonnell Douglas and its better reasoned progeny, he conclusion that discrimination occurred would utomatically follow from the employer’s "legitimate, ondiscriminatory reason” being disproved or rejected. If. Wheelock College v. Massachusetts Commission Against Discrimination, 371 Mass 130, 355 NE 2d 309, 14-315 (1976). Assuming that McDonnell Douglas oes not apply in this proceeding, the Commissioner’s nding that the College’s proffered explanation did ot account for its action left the further factual ques-on of whether discrimination or something else was tie correct explanation of the action. In this context, s in many others, the trier of fact may and usually lust infer the actor’s subjective motivation or intent •om surrounding circumstances. The circumstances ere were wholly consistent with a finding and conclu-lon that Hart was not interviewed or considered be-ause of her sex.
The concurring opinion notes that the Commission-r, in order to arrive at his ultimate findings, con-Luded that the chairman of the art department, Pro-issor Shores, was not credible. The opinion suggests bat the Commissioner could not make credibility ndings because he did not see and hear the witnesses ut made his decision from a review of the record made y the referee. The opinion notes that the Commission*256er, thus, is in no better position than we are to evaluate credibility.
If the conclusion to be made from that analysis is that we make a different credibility evaluation and thus different findings, the simple answer is that we review for substantial evidence while the Commissioner must review the record and make discrete findings. This implies a duty on the part of the Commissioner as fact finder to evaluate the witnesses’ statements and accept or reject them in varying degrees.
On the other hand, if the conclusion is that the Commissioner cannot make credibility findings because he has not observed the witnesses testifying, the simple answer is that credibility (more properly weight) is determinable from a number of factors other than witness demeanor. The credibility, i. e., weight, that attaches to testimony can be determined in terms of the inherent probability, or improbability of the testimony, the possible internal inconsistencies, the fact it is or is not corroborated, that it is contradicted by other testimony or evidence and finally that human experience demonstrates it is logically incredible.
The Commissioner’s findings that he did not think Professor Shores’ testimony was credible was explained in the order. The finding was based on factors other than the witness’s demeanor while testifying and has a basis in the record before the Commissioner.
The Commissioner’s findings and conclusions that Hart was discriminated against should be affirmed.
I agree with the majority that the remedial portion of the order must be reversed in part and remanded. However, some of the issues raised by the College regarding the remedy for discrimination would apply to remedial action respecting unlawful retaliation.
In School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975), the Supreme Court considered the scope of the Commissioner’s authority in providing *257¡medies for discriminatory practices, and specifically nsidered certain remedies similar to those ordered 7 the Commissioner here. The Court stated in Nilsen:
"It is our conclusion that the legislature did not intend to vest in the Commissioner completely unfettered discretion to the extent that the Commissioner could issue an order without some showing of necessity therefor. * * *” 271 Or at 495.
Accord, Fred Meyer v. Bureau of Labor, 39 Or App 253, 92 P2d 564, rev den 287 Or 129 (1979). The Supreme mrt further indicated in Nilsen that whether there is "showing of necessity” for a particular remedial der is primarily an evidentiary question. See, also, Williams v. Joyce, 4 Or App 482, 479 P2d 513, 40 ALR3d 1272, rev den (1971).
The College argues that the Commissioner’s award four and a half years’ back pay and the requirement at Hart be hired as an assistant professor with four ars’ seniority cannot be substantiated because Jhere is no evidence to support an assumption that irt would have been retained beyond one year of íployment if she had been selected for the position.” ie Commissioner argues that the remedy is au-orized by ORS 659.010(2), which empowers him to elude in cease and desist orders requirements that . employer who has engaged in an unlawful practice iminate the effects” of that practice, and to make e victim of discrimination whole. Cf. Albemarle Paper Co. v. Moody, 422 US 405, 95 S Ct 2362, 45 L Ed 2d 280 (1975).
Teachers are initially hired by the College in a jbationary capacity and must generally teach for /en consecutive years before they are awarded te-re. While teachers are in the probationary period, i College may or not renew their contracts. The xessful applicant for the position Hart sought held it position for six years. Thereafter, having failed to tain tenure, he ceased being a faculty member, iring the six years he was on the faculty he was ¡ployed through a series of annual contracts. The *258Commissioner found that, compared to the successful applicant, Hart’s teaching experience was the more "complete, comprehensive and responsible.” He also found that Hart was actively seeking employment, including teaching positions, during the period from 1972 through 1976. As the Commissioner notes, it cannot be "proved” that, had she been hired, Hart would or would not have remained in the position for the four and a half years covered by the back pay award. However, I consider that the combined evidence of Hart’s qualifications, the successful applicant’s length of service, and Hart’s availability for work is sufficient to support a finding that she would have remained in the position for at least that length of time, and is therefore sufficient to support the Commissioner’s award of back pay.
A more complicated question is presented by the portion of the Commissioner’s order directing the College to offer Hart an assistant professorship with four years’ credit toward tenure. In School District No. 1 v. Nilsen, supra, the Commissioner directed the employer school district to rehire certain probationary teachers who had been improperly required to resign because of pregnancy, and to give those teachers immediate tenured status. The Supreme Court stated:
"* * * [W]e believe the Commissioner may not, in the absence of specific authorizing provisions, require the District to hire unneeded teachers. The Commissioner may require that those probationary teachers who were forced to resign because of pregnancy be recompensed for losses they incurred thereby, but the District cannot be forced to hire teachers in the absence of need. The paragraph [of the order] may be amended, however, to require the District to give those who have been forced to resign because of pregnancy preference in openings for which they are qualified.
"We also believe the Commissioner lacks the authority to require the District to give such teachers immediate tenure, although they have not taught for the necessary probationary period, merely because *259they would have had tenure by this time had they not been forced to resign. The District has not completed evaluating their competency. Providing competent teachers for children is as important in the scheme of things as are the individual rights of teachers to have tenure. * * *” 271 Or at 497-98.
Tie situation here differs from Nilsen in two material espects: first, the burden upon the College of absorbing one "unneeded” assistant professor would arguably not be as great as the burden upon the school istrict in Nilsen of hiring the several teachers there avolved; and second, the College is not being directed iy the Commissioner to give Hart immediate tenured tatus, but is, in effect, being required to reduce the valuation period for the award of tenure from seven ears to three years.
Although the present situation differs from Nilsen, re similarities are greater than the differences. Vhile the single "unneeded” hiring which the Com-ússioner’s order requires entails a smaller number of ositions than was involved in Nilsen, the faculty size f the College is obviously far smaller than the entire laching force of School District No. 1. The College lould not be compelled to offer or consider Hart for a osition on the art faculty until such time as a position ir which she is qualified is available.
I would also conclude that the College should not be impelled, at such time as a position is offered to and ccepted by Hart, to give her four years’ advancement iward tenure. Although the College would have three sars from the time of hiring to consider her qualifica-ons for tenure, a longer period is considered neces-iry by the College for a proper evaluation. According- , the College should not be involuntarily required to ve Hart a different level of credit toward tenure om that accorded other starting faculty members in imparable positions.
I would remand the matter to the Commissioner of ibor for issuance of a new order which deletes the *260present paragraph (3), or amends the paragraph to require only that the College give Hart preferential consideration for any openings which may arise for which she is qualified, and which deletes the requirement that she be given credit toward tenure. In all other respects, I would affirm the order.