concurring.
I concur with the majority opinion that there is not substantial evidence in the whole record to support the Commissioner’s finding that the college discriminated against Ms. Hart on the basis of her sex. I also agree that the record supports, by substantial evidence, the Commissioner’s finding that the college retaliated against Ms. Hart in violation of ORS 659.030(1)(d) because she filed a discrimination claim with the Bureau of Labor. I disclaim, however, the majority’s consideration of, and decision on, the college’s claim of denial of due process based on the fact that the Assistant Attorney General, who was the college’s adversary in the contested case hearing, participated with the Commissioner in the preparation of the Commissioner’s findings and order after the college objected to the Referee’s proposed order. I see no reason to decide that question, and seriously doubt that the record here permits a decision on it. Rather, if the question is to be decided, we should appoint a special master pursuant to ORS 183.482(7).1
With respect to the Commissioner’s conclusion that the college discriminated against Ms. Hart on account of her sex, some elaboration is in order. Nowhere does the Commissioner find that the ranking of the final five candidates was motivated by the sex of the appli-*261nt, or that the initial procedure by which the search mmittee was to select an applicant for the opening is motivated by the sex of the applicant. The proce-re may not have been the best one, or even a good e, but unless it has a disparate impact on women ither the Commissioner nor this court may hold that e procedure was unlawful.
The Commissioner did find that the committee nked the applicants so as to arrive at an order in lich each would be interviewed.2 He further found at the first ranked candidate, Professor Paul, was ;erviewed first. While the committee members were cy impressed with Professor Paul, he was eliminated ;er a discussion with the dean of the art department, nfessor Brown, who expressed the view that Profes- ' Paul should not be offered the job because he ked a Master of Fine Arts degree. This requirement so eliminated Professor Pawula, who would have an interviewed second. The third candidate on the nposite list was Barnes, followed by Orr and Hart.
Under the procedure as initially established, mes would have been interviewed next. However, an Brown, while visiting Stanford University on ither matter, had met with Orr, was impressed with n and suggested that the committee interview Orr it.3 Not surprisingly, the committee did so; the *262Commissioner found that Orr was interviewed ahead of Barnes because the Committee acceded to the Dean’s request, not because of any sexual bias. Orr was offered the job, but the offer was rejected. Had he accepted, the process would have ended there. Based upon the interview of Orr ahead of Barnes, the Commissioner found that the Search Committee "abandoned their order of ranking,”4 but he did not find that the decision to interview Orr ahead of Barnes was tainted or motivated by considerations of sex, or that Dean Brown was motivated in any way by preference of a male over a female applicant.
Barnes was interviewed after Orr rejected the college’s offer, was offered the job and accepted it. It is not until this stage of the proceedings that the Commissioner finds that there was discrimination against Hart on account of her sex. He bases that finding on his determination that Hart was at least as qualified as Barnes, if not more so, and would have been interviewed next if she had not been female.
If, however, the initial ranking of the candidates and the initial procedure was not unlawfully tainted, I can see absolutely no basis for a finding or conclusion that the process became discriminatory when the ranking list was reduced to the final two applicants.
*263I conclude that not only does the evidence not sup->rt the Commissioner’s findings, but that the find-gs do not support his conclusions with respect to scrimination in hiring. ORS 659.030(1)(a).
One further note: the referee, in his proposed order, ade no findings with respect to the credibility of any the witnesses. The Commissioner, however, in order reach some of the findings he made was required to nclude that Professor Shores, chairman of the arch Committee, was not credible. Although we ually attach weight to the credibility findings of the 3t finder, we do so because the fact finder normally 3s and hears the witnesses at the time the testimony is given. In this case, however, the Commissioner 1 not see and hear the witnesses, and is in no better dtion to evaluate their credibility than we are. See Omlie et ux. v. Hunt, 211 Or 472, 316 P2d 528 (1957); Hannan v. Good Samaritan Hosp., 4 Or App 178, 189, 471 P2d 831, 476 P2d 931 (1970), rev den (1971).
This is not to say that the Commissioner may not id certain testimony not credible where, for imple, it is internally inconsistent or is inherently xedible; however, the inferences which lead him to find must be reasonable. And I do not consider isonable the Commissioner’s rationale for finding ifessor Shores not credible.
With the foregoing elaboration, I concur in the :ision of the majority.
ORS 183.482(7) provides:
"Review of a contested case shall be confined to the record, the court shall not substitute its judgment for that of the agency as to any issue of fact. In the case of disputed allegations of irregularities in procedure before the agency not shown in the record which, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a Master appointed by the court to take evidence and make findings of fact upon them.”
The dissent states:
"* * * Also central to the College’s explanation was the proposition that graphic skills rather than communicative and teaching skills were the principal criteria of selection, and that the interview process was therefore not indispensable to an evaluation of the applicants’ comparative qualifications.”
college did not contend that the interview was not important; it ended only that under the procedure adopted not all applicants would iterviewed before a decision was made, and the evidence is undisputed the procedure was followed in this respect.
The dissent states:
"* * * The names on the composite list were rearranged to suit the íeeds of the moment and the desires of the dean of the College and the lepartment chairman. For example, Orr was moved from fourth to *262second on the list to enable the dean to interview him while on a trip to California. The College offers no reason why, if the brief geographical proximity between the dean and Orr justified changing his position on the list and interviewing him, Hart’s continuous proximity with the interviewers was a less compelling reason for treating her similarly.”
With all due respect, those statements distort the record and the findings. The only instance in which an applicant was moved up on the composite list was the Orr incident, and that was not done "to enable” Dean Brown to interview Orr. It was done after Brown had talked to Orr while the dean was visiting Stanford on another matter. On his return the dean suggested the committee interview Orr next because he was an impressive candidate.
The dissent states "the thrust of the Commissioner’s findings” was that "the putative search procedures were a sham” from the inception. There is no such finding. The Commissioner did find that the committee abandoned its order of ranking, but the only instance found was that relating to Orr.