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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.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

_______________
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,
certified its ruling for interlocutory appeal
HIGGINBOTHAM, and SMITH,
under 28 U.S.C. § 1292(b). The court also
Circuit Judges.
dismissed most of Horiast's claims but certi-
fied its dismissal of her conspiracy claims and
JERRY E. SMITH, Circuit Judge:
her state law claims for appeal under FED. R.
CIV. P. 54(b).
Deborah Horaist was fired by Doctor's
Hospital of Opelousas, allegedly in retaliation
Horaist appeals, contending that she
for reporting unwelcome sexual advances from
properly raised claims under § 1985(3) and
her supervisors. She sued the alleged harass-
that her state law claims are not time-barred.
ers, the hospital, and several of its officers
We affirm and remand for further proceedings.
(collectively "defendants") under title VII, 42
U.S.C. § 1985(3), and state law. Defendants
I.
moved to disqualify Horaist's counsel on the
Horaist was Director of Business Health
ground that he had an intimate relationship
Services for Doctor's Hospital from July 1995
with her.
to December 1996, during which time she was
dating André Toce, her lawyer in this case. In
The district court denied the motion but
November 1995, Toce sponsored a breast aug-
2

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

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

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

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

concluded above that Toce is not a necessary
EEOC review.9 The relevant portion of the
witness, and his potential testimony is hardly
amended statute reads:
adverse in the sense that the Model Rules
contemplate. Therefore, Toce and his firm
Any cause of action provided in this
may continue to represent Horaist.
Chapter shall be subject to a prescriptive
period of one year. However, this one-
III.
year period shall be suspended during
Horaist contends the court improperly dis-
the pendency of any administrative
missed, as time-barred, her claims of
review or investigation of the claim con-
intentional interference with contract,
ducted by the federal Equal Employment
intentional infliction of emotional distress,
Opportunity Commission or the Lou-
battery, discrimination, and retaliation. Under
isiana Commission on Human Rights.
Louisiana law, each of these delictual actions
No suspension authorized pursuant to
has a limitations period of one year. See LA.
this Subsection of this one-year
CIV. CODE ANN. art. 3492 (West 2001).
prescriptive period shall last longer than six
Horaist was fired on December 5, 1996.
months.
She filed her claim with the EEOC on Janu-
ary 2, 1997. She received her right-to-sue
LA. REV. STAT. ANN. § 23:303(D) (West
letter on May 8, 1998, and sued the same day.
2001). If this statute applies to Horaist's
She admits that the statute of limitations ran
claims, they are timely, because she filed suit
before she filed her claim, but she believed that
within seventeen months.
because her state law claims were
supplemental to her title VII claims, the EEOC
Louisiana law instructs that if, as here, the
administrative proceeding would toll the stat-
legislature has not expressed an intent, the
ute of limitations on the state claim.
court should determine whether the statute is
Moreover, Louisiana law requires that "[a]
procedural, substantive, or interpretive. See
party shall assert all causes of action arising
King v. Phelps Dunbar, L.L.P., 743 So. 2d
out of the transaction or occurrence that is the
181, 185 (La. 1999). Article 6 of the Louis-
subject matter of the litigation." LA. CODE
iana Civil Code Annotated provides that, in the
CIV. PROC. ANN. art. 425 (West 2001).
absence of legislative expression to the
contrary, changes in the law during the course
In 1997, the legislature revised the
of a suit that are procedural and interpretive
employment discrimination statute, LA. REV.
apply both prospectively and retroactively, but
STAT. ANN. § 23:1006, to toll the prescriptive
those that are substantive apply only
period for state causes of action pending
prospectively. Id. at 185. Louisiana courts
have suggested that prescriptive statutes are
8(...continued)
9 The old § 23:1006 did not have a prescriptive
La. 1997) (disqualifying plaintiff's lawyers and the
period, but the courts drew on tort analogies to as-
rest of their firm because the lawyers were likely to
sign a one-year prescriptive period. See Winbush
be called as witnesses to testify adversely to the
v. Normal Life, Inc., 599 So. 2d 489, 491 (La.
client).
App.--3d Cir. 1992).
7

procedural. See, e.g., Dozier v. Ingram Barge
statute of limitations for delictual actions still
Co., 706 So. 2d 1064, 1066 (La. App.--4th
applies.10
Cir. 1998).
If, however, the retroactive application of a
IV.
procedural statute "has the effect of making a
Horaist appeals the dismissal of her con-
change in the substantive law"or creates a new
spiracy claims brought under § 1985(3).11 The
liability, it will apply only prospectively. See
Thomassie v. Savoie, 581 So. 2d 1031, 1034
10
(La. App.--1st Cir.), writ denied, 589 So. 2d
See Roth v. N.J. Malin & Assocs., 1998 WL
493 (La. 1991). An otherwise procedural
898367, at *2 (E.D. La. 1998) (holding that the
prescriptive period of § 23:333(C), now codified at
statute may not apply retroactively if it is
§ 23:303(D), applies only to causes of action
"inextricably intertwined" with a statute that
arising under Chapter 3-A of Title 23, which does
creates a new substantive obligation. Id.
not include intentional infliction of emotional
distress, or retaliatory discharge). The statute
In King, 743 So. 2d at 185, the court
similarly does not provide a cause of action for
determined that chapter 3-A of title 23, which
tortious interference with contract, so the
codified the 1997 Louisiana discrimination
prescriptive period would not be tolled for this
statute, "create[d] and define[d] the rights and
claim, either.
duties of employers and employees relative to
discrimination in the workplace." "[T]he en-
11 The statute reads:
actment of these provisions . . . is substantive
and cannot be retroactively applied." Id.
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
Although King does not hold specifically
purpose of depriving, either directly or in-
that the substantive provisions of the statute
directly, any person or class of persons of
are inextricably intertwined with the
the equal protection of the laws, or of equal
procedural ones, it explains that the legislature
privileges and immunities under the laws; or
intended an overall revision of the law. See id.
for the purpose of preventing or hindering
Thomassie instructs that where a procedural
the constituted authorities of any State or
provision is a part of an overall revision of the
Territory from giving or securing to all per-
law, that provision is "inextricably
sons within such State or Territory the equal
intertwined" with the substantive provision.
protection of the laws; or if two or more
Thomassie, 581 So. 2d at 1034. Accordingly,
persons conspire to prevent by force,
§ 23:303(D) cannot apply retroactively, and
intimidation, or threat, any citizen who is
Horaist's state law employment discrimination
lawfully entitled to vote, from giving his
claim is time-barred.
support or advocacy in a legal manner, to-
ward or in favor of the election of any
lawfully qualified person as an elector for
Horaist urges that this tolling provision also
President or Vice President, or as a Member
applies to her claims of battery, retaliation,
of Congress of the United States; or to
intentional infliction of emotional distress, and
injure any citizen in person or property on
tortious interference with contract. Even had
account of such support or advocacy; in any
we found § 23:303(D) applicable retroactively,
case of conspiracy set forth in this section,
Louisiana courts have held that the one-year
if one or more persons engaged therein do,
(continued...)
8

district court properly dismisses a claim under
Horaist's conspiracy claim seems to
rule 12(b)(6) if "it appears beyond doubt that
reference title VII violations exclusively:
the plaintiff may prove no set of facts which
"Defendants conspired with one another to
would entitle him to relief." Collins v.
create a pretext for DEBBIE's termination and
Morgan Stanley Dean Witter, 224 F.3d 496,
conspired with each other to cover up the
498 (5th Cir. 2000). To state a cognizable
retaliatory discharge." To the extent the
claim under § 1985(3), Horaist must allege
claims stem from title VII, she may not use
that (1) a racial or class-based discriminatory
§ 1985(3) as a remedy.13
animus lay behind the conspiracy and (2) the
conspiracy aimed to violate rights protected
B.
against private infringement.12 Bray v.
Horaist attempts to evade Novotny's bar by
Alexandria Women's Health Clinic, 506 U.S.
explaining that her § 1985(3) claim includes
263, 267-68 (1993) (citing Griffin v.
her state law claims for breach of contract, tor-
Breckenridge, 403 U.S. 88, 102 (1971));
tious interference with contract, intentional in-
United Bhd. of Carpenters v. Scott, 463 U.S.
fliction of emotional distress, discrimination,
825, 833 (1983).
retaliation, and battery. Although, as we have
said, the latter five claims are time-barred, the
A.
breach of contract claim remains before the
district court.
11
We need not consider whether § 1985(3)
(...continued)
protects against interference with state con-
or cause to be done, any act in furtherance of the
tractual rights, because Horiast's conspiracy
object of such conspiracy, whereby another is
injured in his person or property, or deprived of
claim so plainly lacks the necessary element of
having and exercising any right or privilege of a
invidious discrimination. "In this circuit, we
citizen of the United States, the party so injured or
require an allegation of a race-based con-
deprived may have an action for the recovery of
spiracy" to present a claim under § 1985(3).
damages occasioned by such injury or deprivation,
Bryan v. City of Madison, 213 F.3d 267, 276
against any one or more of the conspirators.
(5th Cir. 2000), cert. denied, 121 S. Ct. 1081
42 U.S.C. § 1985(3).
(2001).14 Horaist has alleged no racial ani
12 In this circuit, a § 1985(3) claim must allege
that "(1) the defendants conspired (2) for the pur-
13 See Great Am. Fed. Sav. & Loan Ass'n v.
poses of depriving, either directly or indirectly, any
Novotny, 442 U.S. 366, 378 (1979) (holding that
person or class of persons of the equal protection
"§ 1985(3) may not be invoked to redress
of the laws, or of equal privileges and immunities
violations of Title VII").
under the laws, and (3) one or more of the
conspirators committed some act in furtherance of
14 See also Newberry v. E. Tex. State Univ.,
the conspiracy; whereby (4) another person is
161 F.3d 276, 281 n.2 (5th Cir. 1998) (noting that
injured in his person or property or deprived of
the Supreme Court has never held that non-racial
having and exercising any right or privilege of a
animus is sufficient); Deubert v. Gulf Fed. Sav.
citizen of the United States; and (5) the action of
Bank, 820 F.2d 754 (5th Cir. 1987). The Eleventh
the conspirators is motivated by a racial animus."
Circuit's holding that § 1985(3) applies to
Wong v. Stripling, 881 F.2d 200, 202-03 (5th Cir.
conspiracies grounded in sex-based animus
1989).
(continued...)
9

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.
10