RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 22a0187p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`RACHEL POST,
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`v.
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`Plaintiff-Appellant,
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`TRINITY HEALTH-MICHIGAN, dba Saint Joseph Mercy
`Oakland,
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`Defendant-Appellee.
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`No. 21-2844
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`Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
`No. 2:18-cv-13773—Mark A. Goldsmith, District Judge.
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`Argued: May 16, 2022
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`Decided and Filed: August 12, 2022
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`Before: SILER, BUSH, and MURPHY, Circuit Judges.
`_________________
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`COUNSEL
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`ARGUED: Sam G. Morgan, GASIOREK MORGAN, Farmington Hills, Michigan, for
`Appellant. David M. Cessante, CLARK HILL PLC, Detroit, Michigan, for Appellee.
`ON BRIEF: Sam G. Morgan, Barbara D. Urlaub, GASIOREK MORGAN, Farmington Hills,
`Michigan, for Appellant. David M. Cessante, Brian D. Shekell, CLARK HILL PLC, Detroit,
`Michigan, for Appellee.
`
`_________________
`
`OPINION
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`_________________
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`MURPHY, Circuit Judge. A physician group fired Rachel Post, a nurse, months after she
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`suffered an accident. The group’s subsequent bankruptcy impeded Post’s efforts to hold it liable
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`for employment discrimination under the Americans with Disabilities Act of 1990 (ADA).
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 2
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`She instead sued the hospital at which she worked. Even though this hospital did not employ
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`her, Post argues on appeal that two statutes give her the ability to enforce the ADA’s
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`employment protections against non-employers. Her claim raises both a novel legal question and
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`a settled one.
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`Starting with the novel question, an ADA catchall provision (which we will call the
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`“interference” provision) makes it “unlawful to coerce, intimidate, threaten, or interfere with any
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`individual in the exercise or enjoyment of” an ADA-protected right. 42 U.S.C. § 12203(b).
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`Congress wrote this text in the passive voice without identifying the subject of its prohibition
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`(that is, the party who cannot engage in the unlawful interference). When ADA employment
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`rights are at stake, then, does this provision allow plaintiffs with disabilities to sue any entity
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`(even entities that are not their employers)? Our answer: No, a nearby subsection makes clear
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`that the provision incorporates remedies that permit suits only against (as relevant here)
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`employers. Id. § 12203(c).
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`Turning to the settled question, the civil-conspiracy provision in the Civil Rights Act of
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`1871 authorizes a damages suit when two or more parties “conspire” to “depriv[e]” “any person
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`or class of persons” of “the equal protection of the laws” or the “equal privileges and immunities
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`under the laws[.]” Id. § 1985(3). Does this provision permit a plaintiff to assert a conspiracy
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`claim against an entity that is not the plaintiff’s employer for the deprivation of an ADA-
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`protected employment right? Our answer: No, our precedent holds that disability discrimination
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`does not fall within § 1985(3). See Bartell v. Lohiser, 215 F.3d 550, 559 (6th Cir. 2000). These
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`conclusions require us to affirm the district court’s grant of summary judgment to the hospital.
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`I
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`Trinity Health-Michigan operates St. Joseph Mercy Oakland, a hospital located outside
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`Detroit in Pontiac, Michigan. St. Joseph hired Post in 1980 to work as a nurse in its emergency
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`room. Over the next two decades, Post served in various roles at the hospital. In 2004, she
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`became a certified registered nurse anesthetist. An anesthetist coordinates with anesthesiologists
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`to provide the appropriate anesthesia for surgical procedures and remains with patients in the
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 3
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`operating room while the procedures occur. After becoming an anesthetist, Post transitioned to
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`St. Joseph’s anesthesiology department.
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`In 2013, St. Joseph outsourced its anesthesiology services to the Wayne State University
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`Physician Group. Post’s decades-long employment with St. Joseph came to an end. She
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`continued to work as an anesthetist in St. Joseph’s anesthesiology department, but she now was
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`employed by the University Physician Group.
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`Post diligently performed her duties over the next three years until an accident derailed
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`her career. On October 28, 2016, she was setting up for a procedure in the small, outdated
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`endoscopy room in which she had worked about once a week over the past decade. The room
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`included a video monitor attached to a wall by an extension arm, which allowed the monitor to
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`move off the wall when a doctor needed to use it. Hospital personnel were supposed to restation
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`the monitor flat against the wall after each procedure. On this day, however, somebody had
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`failed to push it back against the wall. As Post prepped a patient, she did not notice the
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`protruding monitor and slammed her head against it. Everything went “fuzzy” for Post. Post
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`Dep., R.67-20, PageID 1240. The impact lacerated her right temple and caused a severe
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`concussion. Given Post’s slurred speech and difficulty walking, a colleague took her to the
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`emergency room.
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`Post suffered from post-concussion syndrome after the accident. For months, she
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`weathered through debilitating headaches and severe fatigue; she also had problems
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`concentrating for extended periods and trouble speaking. The accident forced her to take a leave
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`of absence from work and undergo significant rehabilitation. She received workers’
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`compensation benefits from the University Physician Group’s insurer. Two nurse case managers
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`for this insurer assisted her in her recovery.
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`By March 2017, Post’s condition had improved enough that her doctor authorized her to
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`gradually begin working again under certain restrictions. After three additional months came
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`and went, though, Post had still not made it back to helping patients at St. Joseph. She began to
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`suspect that both the University Physician Group and St. Joseph were putting up roadblocks to
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`her return.
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 4
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`Post had two primary concerns—one about her return-to-work preparation and the other
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`about her credentials to work at St. Joseph. To begin with, her doctor recommended that she
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`practice administering anesthesia in a “simulation room” before treating real patients again.
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`Letter, R.67-8, PageID 1210. As Post explained things, “there’s no way I’m going to go take
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`somebody’s life in my hands without having hands-on little bit of practice.” Post Dep., R.67-20,
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`PageID 1247. One of her case managers thus sought to have Post use St. Joseph’s simulation
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`lab. But the case manager faced resistance from the University Physician Group’s chair. This
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`doctor found it “absolutely inappropriate” for Post to use St. Joseph’s lab because the hospital
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`did not have the equipment or personnel to support the proposed practice sessions. Ellis Dep.,
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`R.67-21, PageID 1310–11.
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`In addition, Post needed to renew her credentials at St. Joseph every two years. During
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`her leave, hospital staff informed her that her credentials would expire in September 2017. To be
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`recredentialed, St. Joseph required Post to submit a form signed by the chair of St. Joseph’s
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`anesthesiology department, who was also a University Physician Group employee. This doctor
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`refused to sign the form because of Post’s leave of absence from the group. Until he cleared her
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`return, St. Joseph indicated that it could not process her application.
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`That clearance never came. In October 2017, the University Physician Group terminated
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`Post for “budgetary” reasons before she returned to work. Letter, R.67-18, PageID 1227. The
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`group later filed for bankruptcy. Post asserted a claim in its bankruptcy case seeking damages
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`for her termination, alleging that the group had engaged in age and disability discrimination.
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`The University Physician Group responded that Post’s requested damages would not exceed an
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`amount covered by its insurance policy and thus that she could not obtain anything from its
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`estate. The bankruptcy court disallowed her claim.
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`Unable to recover from her employer’s estate, Post turned to St. Joseph. She sued the
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`hospital for, among other things, interfering with her right to a reasonable accommodation under
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`the ADA (in violation of 42 U.S.C. § 12203(b)) and conspiring with the University Physician
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`Group to deprive her of her ADA employment rights (in violation of 42 U.S.C. § 1985(3)). The
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`district court granted summary judgment to St. Joseph. See Post v. Trinity Health-Mich., 2021
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`WL 3269058, at *1 (E.D. Mich. July 30, 2021). The court first concluded that our precedent
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 5
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`foreclosed Post’s conspiracy claim under § 1985(3). Id. at *3. Turning to Post’s interference
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`claim, the court next read § 12203(b) to permit some claims against third parties (like St. Joseph)
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`who are not a plaintiff’s employer. See id. at *4–6. Yet the court adopted a legal test under
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`§ 12203(b) that required a third party to harbor discriminatory animus against a plaintiff or to act
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`with an intent to interfere with the plaintiff’s ADA rights. Id. at *6. Because Post lacked
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`sufficient evidence to create a fact question on this element, the court granted summary judgment
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`to St. Joseph on her interference claim. Id. at *6–7. We review its decision de novo. See Davis
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`v. Echo Valley Condo. Ass’n, 945 F.3d 483, 489 (6th Cir. 2019).
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`II
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`Both sides agree that St. Joseph was not Post’s employer. Rather, the University
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`Physician Group employed (and terminated) Post. So Post has not asserted claims against St.
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`Joseph under the laws that regulate an employer’s actions, including, for example, the ADA’s
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`employment provisions. See 42 U.S.C. §§ 12111–12117. Post instead sues St. Joseph under two
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`statutes that she claims are broad enough to regulate the conduct of third parties to the
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`employment relationship: the interference provision in the ADA (42 U.S.C. § 12203(b)) and the
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`civil-conspiracy provision in the Civil Rights Act of 1871 (42 U.S.C. § 1985(3)). But Post
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`cannot avoid the remedial limits in the ADA’s employment subchapter by invoking these other
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`causes of action.
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`A. 42 U.S.C. § 12203(b)
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`The ADA’s interference provision makes it illegal to “interfere with” an individual’s
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`“exercise or enjoyment” of ADA-protected rights:
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`It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual
`in the exercise or enjoyment of, or on account of his or her having exercised or
`enjoyed, or on account of his or her having aided or encouraged any other
`individual in the exercise or enjoyment of, any right granted or protected by this
`chapter.
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`42 U.S.C. § 12203(b). This language does not identify the party barred from engaging in the
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`“unlawful” interference. Id. So Post has a fair point that the provision does not expressly limit
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`its reach to employers. Does its passive-voice construction mean that a disabled individual may
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 6
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`sue anyone—from a close friend to a complete stranger—who happens to interfere with an
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`ADA-protected right? Say, for example, someone parks in the individual’s designated
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`handicapped spot at work. Cf. EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790,
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`793–94, 796 n.3 (8th Cir. 2007). Is the culprit liable under the ADA? We answer this question
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`in the negative. Both the plain text of the ADA and our precedent on a related question rebut
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`Post’s boundless reading. These sources instead demonstrate that, in this employment setting,
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`the interference provision authorizes suits only against employers (and a few other entities that
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`are irrelevant in this case).
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`We begin, as always, with the text. Although the interference provision itself does not
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`list potential defendants, the next subsection clarifies things. Section 12203(c) identifies the
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`remedies available for a violation of the interference provision (and an earlier provision that bars
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`retaliatory actions): “The remedies and procedures available under sections 12117, 12133, and
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`12188 of this title shall be available to aggrieved persons for violations of subsections (a) and
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`(b), with respect to subchapter I, subchapter II and subchapter III, respectively.” 42 U.S.C.
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`§ 12203(c). The ADA’s three titles (or “subchapters” in the U.S. Code’s vernacular) provide
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`disability protections in the employment context (subchapter I and § 12117), the government-
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`services context (subchapter II and § 12133), and
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`the public-accommodations context
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`(subchapter III and § 12188). See Madej v. Maiden, 951 F.3d 364, 372 (6th Cir. 2020). Here,
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`Post alleges that St. Joseph interfered with rights granted by the ADA’s employment provisions.
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`Section 12117 thus sets the remedial ground rules.
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`But § 12117 merely takes us to yet another set of remedial rules. It incorporates the
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`remedies available under Title VII of the Civil Rights Act of 1964:
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`The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5,
`2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and
`procedures this subchapter provides to the Commission, to the Attorney General,
`or to any person alleging discrimination on the basis of disability in violation of
`any provision of this chapter, or regulations promulgated under section 12116 of
`this title, concerning employment.
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 7
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`42 U.S.C. § 12117(a). (The ADA, it seems, teems with these remedial “matryoshka doll[s]” in
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`which one provision incorporates another provision that merely leads to a third. Cf. Jones v. City
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`of Detroit, 20 F.4th 1117, 1119 (6th Cir. 2021) (citation omitted).)
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`So we must look to Title VII’s “remedies and procedures.” 42 U.S.C. § 12203(c). Title
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`VII permits an “aggrieved” party to file an administrative “charge” with the Equal Employment
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`Opportunity Commission (EEOC) against four entities: “an employer, employment agency, labor
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`organization, or joint labor-management committee[.]” Id. § 2000e-5(b). The EEOC must serve
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`the “respondent” (the relevant “employer, employment agency, labor organization, or joint labor-
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`management committee”) with this charge. Id. Only after exhausting this administrative process
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`may the “aggrieved” party file “a civil action” “against the respondent named in the charge[.]”
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`Id. § 2000e-5(f)(1); see Bullington v. Bedford County, 905 F.3d 467, 469–70 (6th Cir. 2018).
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`Title VII thus authorizes a suit only against a “respondent” in the administrative proceedings.
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`42 U.S.C. § 2000e-5(f)(1). And the statute permits (as relevant here) only an aggrieved party’s
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`“employer” to be such a respondent. Id. § 2000e-5(b), (f)(1). As we and other courts have long
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`held, therefore, Title VII permits suits only against employers, not third parties. See Wathen v.
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`Gen. Elec. Co., 115 F.3d 400, 404–05 (6th Cir. 1997) (citing cases); see also Nischan v.
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`Stratosphere Quality, LLC, 865 F.3d 922, 928–30 (7th Cir. 2017); Dearth v. Collins, 441 F.3d
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`931, 933 (11th Cir. 2006) (per curiam); Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996).
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`To summarize things in reverse: Title VII permits suit only against employers (and a few
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`other irrelevant entities). 42 U.S.C. § 2000e-5(b), (f)(1). The ADA’s employment subchapter
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`adopts Title VII’s remedial framework. Id. § 12117(a). And the ADA’s interference provision,
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`in turn, adopts the employment subchapter’s remedial framework when a suit raises an
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`employment complaint. Id. § 12203(c). The statutory chain of cross-references thus leaves no
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`doubt that the interference provision in § 12203(b) likewise permits suit only against employers.
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`This interpretation fits comfortably within the ADA’s broader structure. See Culbertson
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`v. Berryhill, 139 S. Ct. 517, 522 (2019). For starters, the ADA’s employment subchapter makes
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`it unlawful only for a “covered entity” to discriminate against a “qualified individual” on the
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`basis of disability. 42 U.S.C. § 12112(a). This subchapter defines the phrase “covered entity” to
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`mirror the list of potential defendants in Title VII, reaching only “an employer, employment
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 8
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`agency, labor organization, or joint labor-management committee.” Id. § 12111(2). It thus made
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`perfect sense for Congress to incorporate Title VII’s remedial scheme into the ADA’s
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`employment subchapter and provide a cause of action only against parties suable under Title VII.
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`Those are the same “covered entities” regulated by the employment subchapter. But why didn’t
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`Congress simply use the phrase “covered entity” in the ADA’s interference provision too?
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`Recall that this provision applies not just to the employment subchapter but also to the
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`government-services and public-accommodations subchapters too. See id. § 12203(c). Its
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`universal application in all three contexts shows why the provision lacks a single subject—
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`because the proper defendant depends on the proper context. In the employment context, that
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`defendant can only be a “covered entity.”
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`This interpretation also follows from our most analogous decision. The retaliation
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`subsection that precedes the interference provision says that “[n]o person shall discriminate
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`against any individual” because the individual, among other things, made a discrimination
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`charge. Id. § 12203(a). We have already held that employees may sue only their employers for
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`violating this subsection. See Hiler v. Brown, 177 F.3d 542, 545–47 (6th Cir. 1999).
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`Admittedly, Hiler involved a federal employee’s retaliation claim against federal supervisors
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`under the Rehabilitation Act, not a private employee’s retaliation claim against a private
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`non-employer under the ADA. See id. at 543–44; 29 U.S.C. §§ 791, 794(a). But the
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`Rehabilitation Act incorporates the ADA’s retaliation standard. See Hiler, 177 F.3d at 545; 29
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`U.S.C. §§ 791(f), 794(d); cf. Menoken v. Dhillon, 975 F.3d 1, 9 (D.C. Cir. 2020). This Act
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`likewise incorporates Title VII’s remedies. See Hiler, 177 F.3d at 545; 29 U.S.C. § 794a(a)(1).
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`So Hiler raised a similar question regarding § 12203(a)’s retaliation prohibition: can a plaintiff
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`sue non-employers? And we held that the incorporation of Title VII’s remedies meant that
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`plaintiffs could sue only their employers for unlawful retaliation. See Hiler, 177 F.3d at 545–47;
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`see also Spiegel v. Schulmann, 604 F.3d 72, 79–80 (2d Cir. 2010) (per curiam) (same); Albra v.
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`Advan, Inc., 490 F.3d 826, 830–34 (11th Cir. 2007) (per curiam) (same). It would be
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`incongruous to reach a different result for the interference provision.
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`To be sure, the text of the retaliation subsection (at issue in Hiler) differs from the text of
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`the interference provision (at issue here). If anything, though, Hiler presented the harder case.
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 9
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`Unlike the interference provision, the retaliation subsection actually identifies the subject to
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`which its prohibition applies, indicating that “[n]o person” may retaliate against individuals for
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`asserting their rights. 42 U.S.C. § 12203(a). The word “person” obviously includes more than
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`employers. See Hiler, 177 F.3d at 547; 42 U.S.C. § 2000e(a). But we held that we must read
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`this provision in light of its context, which includes the incorporation of Title VII’s remedies in
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`the employment setting. Hiler, 177 F.3d at 547; see Spiegel, 604 F.3d at 79–80. Perhaps
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`Congress used the term “person” because other subchapters incorporate other remedial schemes.
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`The public-accommodations subchapter, for example, adopts the remedies in Title II of the Civil
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`Rights Act of 1964. See 42 U.S.C. § 12188(a)(1). And that scheme allows suits against a
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`“person” that violates its rules. Id. § 2000a-3(a). Regardless, Hiler all but compels our reading
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`of the interference provision (which lists no subject) in this employment context.
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`The district court refused to rule out Post’s broader reading by relying on Binno v.
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`American Bar Association, 826 F.3d 338 (6th Cir. 2016). See Post, 2021 WL 3269058, at *5. In
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`that case, we said in unreasoned dicta that we could “envision, at least hypothetically, that there
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`could be interference with the rights of a disabled individual by a third party.” 826 F.3d at 348.
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`But Binno addressed a claim of interference with rights protected by the public-accommodations
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`subchapter, not the employment subchapter. Id. So the entities that could be sued under the
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`interference provision turned on the “remedies” in that distinct subchapter. 42 U.S.C.
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`§ 12203(c). Binno’s dicta is thus irrelevant in this employment context, and we need not
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`consider the parties that can be sued in the government-services or public-accommodations
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`contexts. Compare Albra, 490 F.3d at 831–33, with Shotz v. City of Plantation, 344 F.3d 1161,
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`1167–80 (11th Cir. 2003).
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`In short, a plaintiff can assert a claim of interference with employment-related rights
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`under § 12203(b) only against an employer (or the few other entities listed in 42 U.S.C. § 2000e-
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`5(b)). Because St. Joseph did not employ Post, her interference claim fails as a matter of law.
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`That conclusion leads to a final disclaimer. The ADA and Title VII define “employer”
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`and “employee” in a similar way: an employer is someone who, among other things, has a
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`sufficient number of “employees”; an employee is someone who is “employed by an employer.”
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`42 U.S.C. § 12111(4), (5)(A) (ADA); id. § 2000e(b), (f) (Title VII); see Wathen, 115 F.3d at 404
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 10
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`n.6. These “completely circular” definitions “explain[] nothing,” so courts have looked to
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`common-law understandings of the employment relationship to fill in the void. See Clackamas
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`Gastro. Assocs., P.C. v. Wells, 538 U.S. 440, 444 (2003) (citation omitted); Nationwide Mut. Ins.
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`Co. v. Darden, 503 U.S. 318, 322–23 (1992). Under these rules, we have held that some entities
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`that do not directly employ a plaintiff may qualify as a statutory “employer.” See Swallows v.
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`Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997); Christopher v. Stouder
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`Mem’l Hosp., 936 F.2d 870, 874 (6th Cir. 1991). Even though St. Joseph is not Post’s direct
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`employer, then, perhaps Post could have alleged some type of joint-employer theory against it.
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`See Swallows, 128 F.3d at 993. Yet Post failed to argue that we should treat St. Joseph as her
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`employer under this precedent. She has thus forfeited any joint-employer theory, and we need
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`not consider the argument. See In re Fifth Third Early Access Cash Advance Litig., 925 F.3d
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`265, 276 n.2 (6th Cir. 2019).
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`B. 42 U.S.C. § 1985(3)
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`Post alternatively seeks to enforce the ADA’s employment protections using 42 U.S.C.
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`§ 1985(3), a provision dating back to the Civil Rights Act of 1871. See Pub. L. No. 42-22, § 2,
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`17 Stat. 13, 13–14. President Grant signed § 1985 into law to end the terror that the Ku Klux
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`Klan had been inflicting on African Americans and their supporters during the Reconstruction
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`period. See United Bhd. of Carpenters & Joiners of Am., Loc. 610 v. Scott, 463 U.S. 825, 835–
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`37 (1983). The statute’s third subsection contains a 255-word sentence creating a damages
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`action against those who, as relevant here, “conspire” “for the purpose of depriving” “any person
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`or class of persons” of “the equal protection of the laws” or “equal privileges and immunities
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`under the laws[.]” 42 U.S.C. § 1985(3). For the full context, this lengthy sentence provides:
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`If two or more persons in any State or Territory conspire or go in disguise on the
`highway or on the premises of another, for the purpose 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; or for the purpose of
`preventing or hindering the constituted authorities of any State or Territory from
`giving or securing to all persons 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, toward or in favor of the election of any
`lawfully qualified person as an elector for President or Vice President, or as a
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`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 11
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`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, 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.
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`Id.; see Kush v. Rutledge, 460 U.S. 719, 724–25 (1983) (explaining § 1985’s subsections). Post
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`alleges that St. Joseph violated § 1985(3) by conspiring with the University Physician Group to
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`deprive her of her ADA-protected employment rights.
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`This claim fails because Post has not shown that any conspiracy deprived her of the
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`“equal protection of the laws” or the “equal privileges and immunities under the laws[.]”
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`42 U.S.C. § 1985(3). To avoid turning § 1985(3) into a generic tort law covering any injury
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`inflicted by two parties, the Supreme Court has interpreted these two phrases to require “some
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`racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the
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`conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (emphasis added). Since
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`Griffin, the Court has repeatedly left open whether something other than race-based animus
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`could ever support a § 1985(3) conspiracy claim against a party. See Bray v. Alexandria
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`Women’s Health Clinic, 506 U.S. 263, 268–69 (1993); Scott, 463 U.S. at 835–36. But our court
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`has substantially limited any non-race-based theory. We have held that § 1985(3) reaches only
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`conspiracies targeting a person based on a classification (like racial discrimination) that would
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`receive heightened scrutiny under the Supreme Court’s equal-protection framework. See
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`Browder v. Tipton, 630 F.2d 1149, 1150 (6th Cir. 1980). Unfortunately for Post, this holding
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`means
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`that § 1985(3) does not “cover” conspiracies grounded
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`in “disability-based
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`discrimination” because that type of discrimination is subject to deferential rational-basis review.
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`Bartell v. Lohiser, 215 F.3d 550, 559–60 (6th Cir. 2000) (citing City of Cleburne v. Cleburne
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`Living Ctr., 473 U.S. 432, 442 (1985)).
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`Post concedes that Bartell forecloses her claim under § 1985(3). But she points out that
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`other circuit courts have held that § 1985 can reach disability discrimination. See Lake v.
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`Arnold, 112 F.3d 682, 686–88 (3d Cir. 1997); New York ex rel. Abrams v. 11 Cornwell Co.,
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`

`

`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 12
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`
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`695 F.2d 34, 42–43 (2d Cir. 1982), vacated in part on other grounds, 718 F.2d 22 (2d Cir. 1983)
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`(en banc); but see D’Amato v. Wis. Gas Co., 760 F.2d 1474, 1486–87 (7th Cir. 1985); Wilhelm v.
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`Cont’l Title Co., 720 F.2d 1173, 1176–77 (10th Cir. 1983). She asks us to “revisit the issue” in
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`light of this precedent. Appellant’s Br. 30. Yet only the Supreme Court or our en banc court can
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`overrule our decisions. See Salmi v. Sec’y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir.
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`1985). And Post does not attempt to argue that any later decision has undercut Bartell’s holding.
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`Cf. Oliver v. Lexington Fayette Urb. Cnty. Gov’t, 2020 WL 7346025, at *3 (6th Cir. Oct. 16,
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`2020) (per curiam) (order).
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`Regardless, even if Bartell did not stand in the way, the Supreme Court’s precedent
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`would leave Post’s legal theory dubious. Like 42 U.S.C. § 1983, § 1985 does not grant any
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`“substantive rights itself”; rather, it provides a cause of action to redress violations of rights
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`found elsewhere. Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 372 (1979); cf.
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`Dibrell v. City of Knoxville, 984 F.3d 1156, 1159–60 (6th Cir. 2021). Claims under § 1985(3)
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`typically involve conspiracies to deprive a victim of constitutional rights. See Bray, 506 U.S. at
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`267, 274–78; Scott, 463 U.S. at 830. Because most constitutional provisions prohibit only state
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`action, though, § 1985 generally requires some state involvement. See Bray, 506 U.S. at 278;
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`Scott, 463 U.S. at 833.
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`Here, by contrast, Post claims that private actors conspired to deprive her of statutory
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`rights in the ADA. Yet the Supreme Court has cautioned against allowing a plaintiff to use
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`§ 1985(3) to enforce a right in another statute when the remedial limits in that statute would bar
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`the plaintiff from suing directly under it. See Novotny, 442 U.S. at 372–78. In Novotny, the
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`Court held that discrimination plaintiffs could not use § 1985(3) “to redress violations of Title
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`VII” because that approach would allow them to avoid the “detailed and specific” procedures for
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`bringing Title VII claims. Id. at 375–76, 378. Since the ADA adopts Title VII’s remedial
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`framework for employment-related claims, the logic in Novotny would seem to apply in full
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`force here. See id. at 372–78. Indeed, the Court has repeatedly made the same general point for
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`§ 1983, see, e.g., City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120–21 (2005), so many
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`circuit courts have already held that plaintiffs cannot use § 1983 to enforce the ADA, see
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`Williams v. Pa. Hum. Rels. Comm’n, 870 F.3d 294, 300 & n.33 (3d Cir. 2017); see also
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`

`

`No. 21-2844
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`Post v. Trinity Health-Michigan
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`Page 13
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`
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`Bullington, 905 F.3d at 471. Yet we merely flag the issue for future cases because St. Joseph did
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`not raise this argument or cite Novotny. Our decision in Bartell independently forecloses Post’s
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`claim under § 1985(3).
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`We affirm.
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`