It's not that I don't disagree with the result of this case. I do. Or its reasoning. Which is indeed based on a correct reading and interpretation of the underlying cases.
My only point of divergence is with the panel's reluctance.
Here's the scoop:
When a typical employee gets fired, her time to sue runs from the last day of her work. Not the date she was notified she was being fired: her last day of work. Even if she continues to work for the company a bit after she was notified that she was being terminated.
Here, a tenured professor gets fired. More concretely, he gets notified that he was denied tenure, which effectively means he's fired. He continued to work for the university for a little bit after he was notified that his tenured was denied.
When does his time to sue run?
The answer seems obvious to me: From the date of his last day of work. And that's exactly what the Court of Appeal holds. A holding that follows directly from precedent, which the panel's opinion explores at length.
But after reaching that conclusion, the Court of Appeal says:
"We acknowledge that both case law and rational policy
considerations may militate in favor of a rule that in cases
involving an allegedly discriminatory denial of tenure, the statute
of limitations for filing an administrative complaint runs from
the date the employee is notified of the final tenure decision.
Had our Supreme Court in Romano merely distinguished denial of-tenure
cases from the case before it, we might well adopt such
a rule. But we cannot ignore the language of Romano or the fact
that our highest court expressly questioned and unequivocally
criticized cases adopting that approach."
Why so timid?
In my view, "case law and rational policy considerations" militate in favor of precisely the rule the Court of Appeal articulates here, not the other way around. If the clock for normal employees does not start ticking until they actually leave the company -- even if they're definitively notified on an earlier date that they're being fired -- then that exact same reasoning applies equally to employees who work for a university and who are denied tenure. They're similarly-situated. They should be treated the same.
What'd be weird is if they were subject to a different rule. That's what wouldn't be "rational" or consistent with public policy. Because being told that you aren't getting tenure (and hence have to stop work on Day Y) and being told that you're being fired (and hence have to stop work on Day Y) are the same thing. The exact same clock should apply.
So good result. But an even better one than the panel perceives it to be, IMHO.
