Opinion
No. 02-2705.
July 11, 2003.
Before BOUDIN, Chief Judge, TORRUELLA and SELYA, Circuit Judges, LYNCH,fn_ LIPEZ and HOWARD Circuit Judges.
Judge Selya and Judge Lynch are recused and did not participate in the consideration of this matter.
ORDER OF COURT
The petition for rehearing is denied. Contrary to the petition for rehearing, the court's decision makes it clear that a complainant cannot bypass an adequate complaint procedure if the failure to do so was "objectively unreasonable for one in [the complainant's] position." Op. at 37. See also op. at 37 ("Or, the jury might conclude that whatever Reed's state of mind, a reasonable person in her position would have reported Appel's assault.").
The opinion also contemplated that Reed could not excuse a failure to use the complaint process based on threats of retaliation and Appel's purported family influence if "in fact" Reed was not persuaded by these threats and therefore the threats were not a cause of the failure to use the complaint process. Op. at 37. See also op. at 37. But this does not eliminate the objective test for reasonableness and serves only to give additional protection to a defendant.
The petition for rehearing en banc having been carefully considered by the judges of the Court in regular active service and a majority of said judges not having voted to order that the appeals be heard or reheard by the Court en banc,
It is ordered that the petition for rehearing en banc, be denied.