Horaist v. Doctors Hosp Opel, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-31121
_______________
DEBORAH M. HORAIST,
Plaintiff-Appellant,
VERSUS
DOCTOR’S HOSPITAL OF OPELOUSAS;
COLUMBIA/HCA HEALTHCARE CORPORATION OF CENTRAL LOUISIANA, INC.;
NOTAMI OPELOUSAS, INC.; NOTAMI HOSPITAL OF LOUISIANA, INC.;
COLUMBIA/HCA HEALTHCARE CORPORATION; JAMES BIENVENUE;
GREG GIBSON; MEL LAGARDE; DARYL DOISE; RICK THOMASON;
SELDON DESHOTEL, JR., M.D.;
CONTINENTAL INSURANCE COMPANIES; CONTINENTAL CASUALTY COMPANY;
RELIANCE INSURANCE COMPANY OF ILLINOIS;
CNA INSURANCE COMPANY; CLARENDON LLOYDS;
HEALTHCARE INDEMNITY, INC.; AND LLOYDS OF LONDON,
Defendants-Appellees.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

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_______________
m 99-31138
_______________
SEALED APPELLEE,
Plaintiff-Appellee,
VERSUS
SEALED APPELLANT 1; SEALED APPELLANT 2; SEALED APPELLANT 3;
SEALED APPELLANT 4; SEALED APPELLANT 5; SEALED APPELLANT 6;
SEALED APPELLANT 7; SEALED APPELLANT 8; SEALED APPELLANT 9,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Western District of Louisiana
_________________________
July 11, 2001
Before REYNALDO G. GARZA,
HIGGINBOTHAM, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Deborah Horaist was fired by Doctor’s
Hospital of Opelousas, allegedly in retaliation
for reporting unwelcome sexual advances from
her supervisors. She sued the alleged harass-
ers, the hospital, and several of its officers
(collectively “defendants”) under title VII, 42
U.S.C. § 1985(3), and state law. Defendants
moved to disqualify Horaist’s counsel on the
ground that he had an intimate relationship
with her.
The district court denied the motion but
certified its ruling for interlocutory appeal
under 28 U.S.C. § 1292(b). The court also
dismissed most of Horiast’s claims but certi-
fied its dismissal of her conspiracy claims and
her state law claims for appeal under FED. R.
CIV. P. 54(b).
Horaist appeals, contending that she
properly raised claims under § 1985(3) and
that her state law claims are not time-barred.
We affirm and remand for further proceedings.
I.
Horaist was Director of Business Health
Services for Doctor’s Hospital from July 1995
to December 1996, during which time she was
dating André Toce, her lawyer in this case. In
November 1995, Toce sponsored a breast aug-

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mentation surgery for her.
Horaist asserts that throughout her
employment, she received unwelcome sexual
advances and verbal harassment, including
comments about her breasts, from Sheldon
Deshotels, a physician on staff. Horaist
reported Deshotels’s behavior to Gibson and
to the Chief Operations Officer and Chief
Financial Officer. Gibson advised her to file a
written complaint with him rather than with
Human Resources. Horaist did not tell Toce
about the sexual harassment at the time, nor
did Toce notice anything while attending social
functions at the hospital with her.
Horiast further claims that Gibson made re-
peated and unwelcome sexual advances
toward her, including calling her residence,
fondling her in a sexual manner, commenting
explicitly about her body and the thoughts he
had in connection therewith, and attempting to
kiss her. She reported this behavior to the
COO and CFO, who advised her to file a
formal complaint.
After reporting Gibson, Horaist asserts that
he made unrealistic demands on her schedule
and that her duties changed from those of an
executive manager to those of an errand girl.
Further, Gibson purportedly suggested that
she should have sexual relations with him if
she wanted to keep her job. Horaist was fired
in December 1996, allegedly in retaliation for
reporting the harassment. After her
termination, she earned money through a gift-
basket business and interior decorating.
Horaist sued the corporate defendants and
certain of their officers, Deshotels, and Gibson
for retaliatory discharge, breach of contract,
conspiracy to permit the sexual harassment or
to force Horaist out of her position, and state
law claims of battery and intentional infliction
of emotional distress. The defendants moved
to disqualify Toce and his law firm on the
ground that his intimate relationship with Hor-
aist caused a conflict of interest and interfered
with his ability to render independent
professional judgment. Moreover, they
claimed Toce was a necessary witness on the
issues of liability and damages for emotional
distress, because Horaist had discussed
problems in her relationship with Toce with
her therapist. Further, they argued that these
conflicts should be imputed to Toce’s firm.
The court dismissed the § 1985(3)
conspiracy claims against all defendants, the
state law claims against the corporate
defendants, state law claims against Deshotels,
and state law claims against Gibson for failure
to state a claim on which relief could be
granted. See FED. R. CIV. P. 12(b)(6). Only
the breach of contract claim against Gibson
and the contract and title VII claims against
the corporate defendants remained. The court
certified these claims for immediate appeal1
and later dismissed all title VII claims against
the individual defendants. Horaist now
presents the issues certified for appeal by the
district court, and the parties do not contest
the propriety of that certification.2
1 See FED. R. CIV. P. 54(b) (allowing a district
court to “direct the entry of a final judgment as to
one or more but fewer than all claims or parties
only upon an express determination that there is no
just reason for delay and upon an express direction
for the entry of judgment”).
2 After Horaist filed her appeal, she reasserted
all of her claims in a third amended complaint. She
refused to withdraw the previously dismissed
claims, and the district court struck them again.
See FED. R. CIV. P. 12(f) (stating that the court
(continued...)

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4
II.
The district court refused to disqualify Toce
and his firm from representing Horaist, and it
certified the ruling for an interlocutory appeal
under 28 U.S.C. § 1292(b). On appeal, we
consider whether (1) Toce was a necessary
witness; (2) he had an impermissible conflict of
interest; and (3) any disqualification should be
imputed to his firm. We review the findings of
fact for clear error and the application of the
rules of ethical conduct de novo. FDIC v.
United States Fire Ins. Co., 50 F.3d 1304,
1311 (5th Cir. 1995).
“[D]isqualification cases are governed by
state and national ethical standards adopted by
the court.” Id. at 1312 (quoting In re Am.
Airlines, Inc., 972 F.2d 605, 605 (5th Cir.
1992)). Ethical canons relevant to the district
court’s order include (1) the local rules for the
Western District of Louisiana; (2) the
American Bar Association’s (“ABA’s”) Model
Rules of Professional Conduct; (3) the ABA’s
Model Code of Professional Responsibility;
and (4) the state rules of conduct. See id. The
Rules of the Western District of Louisiana spe-
cifically adopt the Rules of Professional Con-
duct of the Supreme Court of Louisiana. See
LA. UNIFORM R. U.S. DIST. CT. LR83.2.4W.
These rules are identical to the ABA’s Model
Rules of Professional Conduct in all relevant
aspects. See LA. REV. STAT. tit. 37, ch. 4,
art. XVI.
We interpret these rules as we would any
other source of law. In re Dresser Indus., 972
F.2d 540, 543 (5th Cir. 1992). In considering
a disqualification motion, we view the rules in
light of the litigant’s rights and the public in-
terest, considering “whether a conflict has
(1) the appearance of impropriety in general,
or (2) a possibility that a specific impropriety
will occur, and (3) the likelihood of public sus-
picion from the impropriety outweighs any so-
cial interests which will be served by the
lawyer’s continued participation in the case.”
Id. at 544.
A.
Defendants contend that Toce is a
necessary witness and thus should be
disqualified. MODEL RULES OF PROF’L
CONDUCT 3.7(a); LA. RULES OF PROF’L
CONDUCT 3.7(a) (2000).3 They believe he
2(...continued)
may strike “from any pleading any insufficient de-
fense or any redundant, immaterial, impertinent, or
scandalous matter”). Defendants contend that the
subsequent dismissal estops Horaist from seeking
our review of the issues certified under rule 54(b).
We disagree. The presence of similar claims,
either arising out of the same transaction or sharing
factual elements, pending before the district court,
does not strip us of jurisdiction to hear the certified
issue on appeal. See H & W Indus., Inc. v. Formo-
sa Plastics Corp., 860 F.2d 172, 175 (5th Cir.
1988). If a factually identical claim may proceed
in the district court during the pendency of the ap-
peal, its disposition, by extension, cannot preclude
the effect of our decision.
3 The rule states:
(a) A lawyer shall not act as an advocate at
a trial in which the lawyer is likely to be a
necessary witness except where:
(1) the testimony relates to an uncontested
issue;
(2) the testimony relates to the nature and
value of legal services rendered in the case;
or
(3) disqualification of the lawyer would
(continued...)

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must testify that Horaist did not tell him about
the harassment at the time it occurred and that
this fact is adverse to her. They also want
Toce to testify to Horaist’s emotional state
and to her earnings in her gift-basket business
and interior decorating.
If a lawyer must testify adversely to a
client’s interest, the client cannot waive the
conflict. See United States Fire Ins. Co., 50
F.3d at 1317. But, if a lawyer discovers dur-
ing litigation that he “may be called as a wit-
ness other than on behalf of his client, he may
continue the representation until it is apparent
that his testimony would prejudice his client.”
MODEL RULES OF PROF’L CONDUCT 3.7(c); LA.
RULES OF PROF’L CONDUCT 3.7(c).
“Testimony is considered prejudicial under this
Rule if it is so adverse to the client’s side that
the bar or the client might have an interest in
discrediting the testimony,” and the movant
has the burden of establishing prejudice with
specificity. Smith v. New Orleans Fed. Sav. &
Loan Ass’n, 474 F. Supp. 742, 749-50 (E.D.
La. 1979) (internal quotation marks omitted).
Each item of information that Toce could
provide is already available from another
source, and defendants have failed to articulate
how Toce’s corroboration would prejudice
Horaist. Horaist may testify to the nature of
her relationship with Toce and to the fact that
she did not reveal her harassment to him at the
time. Other co-workers may shed light on
Horaist’s behavior with her alleged harassers.
She may produce business records or testify
to her earnings. Her psychologist, family,
friends, and former co-workers can testify to
her emotional state.4
Because his testimony is cumulative, Toce
is not a necessary witness. His testimony cor-
roborates Horaist’s, so she has no interest in
discrediting it. The defendants have not met
their burden of demonstrating prejudice. See
id. at 750.5 In addition, when the attorney’s
participation as both lawyer and witness stands
to prejudice only his own client, the opposing
attorney should have no say in the matter.
United States Fire Ins. Co., 50 F.3d at 1315.
B.
3(...continued)
work a substantial hardship on the
client.
(b) A lawyer may act as an advocate in a
trial in which another lawyer in the lawyer’s
firm is likely to be called as a witness unless
precluded from doing so by Rule 1.7 or 1.9.
(c) If, after undertaking employment in con-
templated or pending litigation, a lawyer
learns, or it is obvious that he or a lawyer in
his firm may be called as a witness other
than on behalf of his client, he may continue
the representation until it is apparent that his
testimony is or may be prejudicial to his
client.
MODEL RULES OF PROF’L CONDUCT 3.7(a); LA.
RULES OF PROF’L CONDUCT 3.7(a) (2000).
4 Defendants also want Toce to testify that he
paid for Horaist’s breast augmentation surgery.
Although that is irrelevant to the sexual harassment
suit, Horaist can testify to it herself.
5 Because Toce is not a necessary witness, we
need not reach the question whether the substantial
hardship to Horaist outweighs the appearance of
impropriety and other policy considerations. Cf.,
e.g., MODEL RULE 3.7(a); United States Fire Ins.
Co., 50 F.3d at 1316 (noting that the necessary
witness rule balances the likelihood of public
suspicion against a party’s right to counsel of
choice).

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Defendants argue that Toce’s
representation of Horaist creates a conflict of
interest. “A lawyer shall not represent a client
if the representation of that client may be
materially limited by . . . the lawyer’s own
interests, unless: (1) the lawyer reasonably
believes the representation will not be
adversely affected; and (2) the client consents
after consultation.” MODEL RULES OF PROF’L
CONDUCT 1.7(b); LA. RULES OF PROF’L
CONDUCT 1.7(b).
Defendants also claim that Toce cannot
exercise independent professional judgment
because of his past relationship. “In
representing a client, a lawyer shall exercise
independent professional judgment and render
candid advice.” MODEL RULES OF PROF’L
CONDUCT 2.1; LA. RULES OF PROF’L CONDUCT
2.1. A sexual relationship with a client that
arises during the course of the representation
may create a conflict between the professional
and personal interests of the lawyer and
interfere with the lawyer’s professional
judgment.6
Horaist and Toce assert, however, that their
relationship ended before the litigation began.
Moreover, Horaist consented to the
representation after full disclosure, thereby
waiving the conflict of interest. Even if the
relationship lasted longer than they admit, all
parties agree that Horaist and Toce are not
now intimately involved. Prior sexual
relationships do not give rise to the type of
ethical violation requiring disqualification
under the rules.7
C.
Defendants argue that Toce’s conflict of in-
terest should be imputed to the firm. “While
lawyers are associated in a firm, none of them
shall knowingly represent a client when any
one of them practicing alone would be
prohibited from doing so by Rules 1.7, 1.8(c),
1.9, or 2.2.” MODEL RULES OF PROF’L
CONDUCT 1.10(a); LA. RULES OF PROF’L
CONDUCT 1.10(a). Rule 1.10 concerns only
Toce’s alleged conflict of interest, not his
potential status as a witness or his ability to
render a candid opinion. As discussed above,
Horaist has waived any conflict that may arise
under rule 1.7 by her consent to the
representation after full disclosure.
Louisiana courts have held that if an
attorney is disqualified under rule 3.7, his
presence as a witness may create a conflict of
interest that may be imputed to the firm.8 We
6 See, e.g., In re Gore, 752 So. 2d 853, 855
(La. 2000) (affirming the suspension of an attorney
who had an affair with a client he represented in a
divorce); In re Touchet, 753 So. 2d 820, 823 (La.
2000) (disbarring attorney for unwanted sexual ad-
vances to clients, including solicitation of sexual
favors in lieu of fees); In re Schambach, 726 So.
2d 892, 895-96 (La. 1999) (involving an attorney
who had an extra-marital affair with a client after
he began representing her, borrowed money from
her, and refused to repay it); In re Ashy, 721 So.
2d 859, 867-68 (La. 1998) (suspending a lawyer
for two years for unwanted sexual advances).
7 Cf. generally Ralph H. Brock, Sex, Clients,
and Legal Ethics, 64 TEX. BAR J. 234 (2001)
(lauding the emergence of specific disciplinary
rules prohibiting a lawyer from having a sexual
relationship with a client during the course of
representation).
8 See Bellino v. Simon, 1999 WL 1277535
(E.D. La. 1999) (disqualifying counsel and his firm
because counsel was a necessary witness, his tes-
timony would contradict his client’s assertions, and
his actions were in question). See also Lange v.
Orleans Levee Dist., 1997 WL 668216 at *5 (E.D.
(continued...)

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concluded above that Toce is not a necessary
witness, and his potential testimony is hardly
adverse in the sense that the Model Rules
contemplate. Therefore, Toce and his firm
may continue to represent Horaist.
III.
Horaist contends the court improperly dis-
missed, as time-barred, her claims of
intentional interference with contract,
intentional infliction of emotional distress,
battery, discrimination, and retaliation. Under
Louisiana law, each of these delictual actions
has a limitations period of one year. See LA.
CIV. CODE ANN. art. 3492 (West 2001).
Horaist was fired on December 5, 1996.
She filed her claim with the EEOC on Janu-
ary 2, 1997. She received her right-to-sue
letter on May 8, 1998, and sued the same day.
She admits that the statute of limitations ran
before she filed her claim, but she believed that
because her state law claims were
supplemental to her title VII claims, the EEOC
administrative proceeding would toll the stat-
ute of limitations on the state claim.
Moreover, Louisiana law requires that “[a]
party shall assert all causes of action arising
out of the transaction or occurrence that is the
subject matter of the litigation.” LA. CODE
CIV. PROC. ANN. art. 425 (West 2001).
In 1997, the legislature revised the
employment discrimination statute, LA. REV.
STAT. ANN. § 23:1006, to toll the prescriptive
period for state causes of action pending
EEOC review.9 The relevant portion of the
amended statute reads:
Any cause of action provided in this
Chapter shall be subject to a prescriptive
period of one year. However, this one-
year period shall be suspended during
the pendency of any administrative
review or investigation of the claim con-
ducted by the federal Equal Employment
Opportunity Commission or the Lou-
isiana Commission on Human Rights.
No suspension authorized pursuant to
this Subsection of this one-year
prescriptive period shall last longer than six
months.
LA. REV. STAT. ANN. § 23:303(D) (West
2001). If this statute applies to Horaist’s
claims, they are timely, because she filed suit
within seventeen months.
Louisiana law instructs that if, as here, the
legislature has not expressed an intent, the
court should determine whether the statute is
procedural, substantive, or interpretive. See
King v. Phelps Dunbar, L.L.P., 743 So. 2d
181, 185 (La. 1999). Article 6 of the Louis-
iana Civil Code Annotated provides that, in the
absence of legislative expression to the
contrary, changes in the law during the course
of a suit that are procedural and interpretive
apply both prospectively and retroactively, but
those that are substantive apply only
prospectively. Id. at 185. Louisiana courts
have suggested that prescriptive statutes are
8(...continued)
La. 1997) (disqualifying plaintiff’s lawyers and the
rest of their firm because the lawyers were likely to
be called as witnesses to testify adversely to the
client).
9 The old § 23:1006 did not have a prescriptive
period, but the courts drew on tort analogies to as-
sign a one-year prescriptive period. See Winbush
v. Normal Life, Inc., 599 So. 2d 489, 491 (La.
App.—3d Cir. 1992).

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procedural. See, e.g., Dozier v. Ingram Barge
Co., 706 So. 2d 1064, 1066 (La. App.—4th
Cir. 1998).
If, however, the retroactive application of a
procedural statute “has the effect of making a
change in the substantive law”or creates a new
liability, it will apply only prospectively. See
Thomassie v. Savoie, 581 So. 2d 1031, 1034
(La. App.—1st Cir.), writ denied, 589 So. 2d
493 (La. 1991). An otherwise procedural
statute may not apply retroactively if it is
“inextricably intertwined” with a statute that
creates a new substantive obligation. Id.
In King, 743 So. 2d at 185, the court
determined that chapter 3-A of title 23, which
codified the 1997 Louisiana discrimination
statute, “create[d] and define[d] the rights and
duties of employers and employees relative to
discrimination in the workplace.” “[T]he en-
actment of these provisions . . . is substantive
and cannot be retroactively applied.” Id.
Although King does not hold specifically
that the substantive provisions of the statute
are inextricably intertwined with the
procedural ones, it explains that the legislature
intended an overall revision of the law. See id.
Thomassie instructs that where a procedural
provision is a part of an overall revision of the
law, that provision is “inextricably
intertwined” with the substantive provision.
Thomassie, 581 So. 2d at 1034. Accordingly,
§ 23:303(D) cannot apply retroactively, and
Horaist’s state law employment discrimination
claim is time-barred.
Horaist urges that this tolling provision also
applies to her claims of battery, retaliation,
intentional infliction of emotional distress, and
tortious interference with contract. Even had
we found § 23:303(D) applicable retroactively,
Louisiana courts have held that the one-year
statute of limitations for delictual actions still
applies.10
IV.
Horaist appeals the dismissal of her con-
spiracy claims brought under § 1985(3).11 The
10 See Roth v. N.J. Malin & Assocs., 1998 WL
898367, at *2 (E.D. La. 1998) (holding that the
prescriptive period of § 23:333(C), now codified at
§ 23:303(D), applies only to causes of action
arising under Chapter 3-A of Title 23, which does
not include intentional infliction of emotional
distress, or retaliatory discharge). The statute
similarly does not provide a cause of action for
tortious interference with contract, so the
prescriptive period would not be tolled for this
claim, either.
11 The statute reads:
If two or more persons in any State or Ter-
ritory conspire or go in disguise on the high-
way or on the premises of another, for the
purpose of depriving, either directly or in-
directly, any person or class of persons of
the equal protection of the laws, or of equal
privileges and immunities under the laws; or
for the purpose of preventing or hindering
the constituted authorities of any State or
Territory from giving or securing to all per-
sons within such State or Territory the equal
protection of the laws; or if two or more
persons conspire to prevent by force,
intimidation, or threat, any citizen who is
lawfully entitled to vote, from giving his
support or advocacy in a legal manner, to-
ward or in favor of the election of any
lawfully qualified person as an elector for
President or Vice President, or as a Member
of Congress of the United States; or to
injure any citizen in person or property on
account of such support or advocacy; in any
case of conspiracy set forth in this section,
if one or more persons engaged therein do,
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district court properly dismisses a claim under
rule 12(b)(6) if “it appears beyond doubt that
the plaintiff may prove no set of facts which
would entitle him to relief.” Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496,
498 (5th Cir. 2000). To state a cognizable
claim under § 1985(3), Horaist must allege
that (1) a racial or class-based discriminatory
animus lay behind the conspiracy and (2) the
conspiracy aimed to violate rights protected
against private infringement.12 Bray v.
Alexandria Women’s Health Clinic, 506 U.S.
263, 267-68 (1993) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971));
United Bhd. of Carpenters v. Scott, 463 U.S.
825, 833 (1983).
A.
Horaist’s conspiracy claim seems to
reference title VII violations exclusively:
“Defendants conspired with one another to
create a pretext for DEBBIE’s termination and
conspired with each other to cover up the
retaliatory discharge.” To the extent the
claims stem from title VII, she may not use
§ 1985(3) as a remedy.13
B.
Horaist attempts to evade Novotny’s bar by
explaining that her § 1985(3) claim includes
her state law claims for breach of contract, tor-
tious interference with contract, intentional in-
fliction of emotional distress, discrimination,
retaliation, and battery. Although, as we have
said, the latter five claims are time-barred, the
breach of contract claim remains before the
district court.
We need not consider whether § 1985(3)
protects against interference with state con-
tractual rights, because Horiast’s conspiracy
claim so plainly lacks the necessary element of
invidious discrimination. “In this circuit, we
require an allegation of a race-based con-
spiracy” to present a claim under § 1985(3).
Bryan v. City of Madison, 213 F.3d 267, 276
(5th Cir. 2000), cert. denied, 121 S. Ct. 1081
(2001).14 Horaist has alleged no racial ani
11(...continued)
or cause to be done, any act in furtherance of the
object of such conspiracy, whereby another is
injured in his person or property, or deprived of
having and exercising any right or privilege of a
citizen of the United States, the party so injured or
deprived may have an action for the recovery of
damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
42 U.S.C. § 1985(3).
12 In this circuit, a § 1985(3) claim must allege
that “(1) the defendants conspired (2) for the pur-
poses of depriving, either directly or indirectly, any
person or class of persons of the equal protection
of the laws, or of equal privileges and immunities
under the laws, and (3) one or more of the
conspirators committed some act in furtherance of
the conspiracy; whereby (4) another person is
injured in his person or property or deprived of
having and exercising any right or privilege of a
citizen of the United States; and (5) the action of
the conspirators is motivated by a racial animus.”
Wong v. Stripling, 881 F.2d 200, 202-03 (5th Cir.
1989).
13 See Great Am. Fed. Sav. & Loan Ass’n v.
Novotny, 442 U.S. 366, 378 (1979) (holding that
Ҥ 1985(3) may not be invoked to redress
violations of Title VII”).
14 See also Newberry v. E. Tex. State Univ.,
161 F.3d 276, 281 n.2 (5th Cir. 1998) (noting that
the Supreme Court has never held that non-racial
animus is sufficient); Deubert v. Gulf Fed. Sav.
Bank, 820 F.2d 754 (5th Cir. 1987). The Eleventh
Circuit’s holding that § 1985(3) applies to
conspiracies grounded in sex-based animus
(continued...)

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mus, so her claim fails; the district court cor-
rectly dismissed it under FED. R. CIV. P.
12(b)(6).
The judgments and orders appealed from
are AFFIRMED, and this matter is
REMANDED for further proceedings.
14(...continued)
perpetrated under color of state law may seem in
tension with Fifth Circuit precedent. See Lyes v.
City of Riviera Beach, 166 F.3d 1332, 1336-40
(11th Cir. 1999). In fact, however, it does not
squarely contradict our prior holdings.
The Lyes court declared sex-based animus ac-
tionable where plaintiffs had raised a charge of
conspiracy to violate the Equal Protection Clause.
Id. at 1336. We r ecognized in Wong that a
plaintiff could raise such a claim under § 1985(3).
See Wong, 881 F.2d at 203 (dismissing the claim
for failure to allege state action). We also noted
that § 1985(3) does not confer substantive rights.
Id. Thus, in Lyes, the Eleventh Circuit needed to
account for the special question presented by the
interaction of the Equal Protection Clause with
§ 1985(3).
Lyes’s statement that “class-based” dis-
crimination for purposes of § 1985(3) is
coterminous with the suspect classes of equal
protection analysis (at least with regard to sex)
may have been appropriate where the underlying
right was equal protection itself. Cf. Lyes, 166
F.3d at 1338. We have never been presented with
this precise question, and we express no view on it
now.

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