OLDHAM v. THE PENNSYLVANIA STATE UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER OLDHAM, No. 4:20-CV-02364

Plaintiff, (Chief Judge Brann)

v.

THE PENNSYLVANIA STATE

UNIVERSITY, et al.,

Defendants.

MEMORANDUM OPINION

MAY 13, 2022

Jennifer Oldham, a private fencing instructor based in North Carolina, was

sexually assaulted by The Pennsylvania State University’s fencing team assistant

coach while the two were on a plane from Oregon to Illinois, the first leg of their

respective return trips from a national fencing competition. Oldham notified Penn

State’s head fencing coach of the assault, but he dismissed her concerns and

pressured her not to report the incident. The head coach refused to notify Penn

State of the allegation, and then he and his assistant proceeded to spread falsehoods

about Oldham and the assault to others in the small, insular competitive fencing

community. Nevertheless, the assault was investigated and verified—first, by an

independent body; second, by Penn State—and the assistant coach was ultimately

banned from USA Fencing activities and fired by the University.

Oldham now brings suit against the Penn State fencing coaches as well as

the University and its Title IX coordinator, alleging violations of Title IX of the

Education Amendments of 1972 as well as various state law tort claims, including

battery, defamation, negligent supervision/training, and negligent/intentional

infliction of emotional distress. The Defendants move to dismiss the suit in full,

arguing that Oldham’s claims are both untimely and legally unsubstantiated.

Although all but one claim qualify as timely, the lack of an established relationship

with Penn State and absence of certain material allegations necessitate dismissal.

I. BACKGROUND

A. Factual Background

On December 12, 2017, members of Penn State’s fencing team were on a

commercial flight from Portland, Oregon to Chicago, Illinois, returning from a

USA Fencing North America Cup tournament.1 As Oldham describes it, Penn State

fencing is “perennially an NCAA powerhouse and championship contender and

trainer of Olympians.”2 And its head coach, Wieslaw Glon, is an institution unto

himself—a coach at Penn State since 1985, Glon is the author of the program’s

success and deeply connected to, and highly regarded in, the small, insular, male-

dominated competitive fencing community.3 Although it is unclear whether Glon

traveled with the Penn state fencers competing in the North America Cup

1 Doc. 105 ¶¶ 1, 6–7.

2 Id. ¶ 129.

tournament, his assistant coach, George Abashidze, attended the event and

accompanied his team members on the return flight from Portland to Chicago.4

Jennifer Oldham, a private fencing instructor who operates a fencing club in

Durham, North Carolina, was also on the flight.5 She attended the North America

Cup tournament as a coach for a fencer from her private club.6 On the plane,

Oldham had a middle seat in a standard three-seat row, with Abashidze to her left

in the aisle seat.7 Although not traveling together, the two were “generally

acquainted.”8 To Oldham’s right, in the window seat, sat another passenger

returning from the fencing event whom Oldham also knew prior to the flight.9

Whatever expectations Oldham had of a cordial return trip with professional

acquaintances proved misplaced. During the four-hour flight, “Abashidze made

numerous lewd comments, touched Oldham’s legs, arms, and face without her

consent, and repeatedly demanded that Oldham have sex with him”—all “within

earshot of nearby passengers.”10 And mid-flight, as the plane crossed “somewhere

over the Great Plains region of the United States,” Abashidze “thrust his hand

between . . . Oldham’s legs and grabbed her genitalia without her consent.”11

4 Id. ¶ 6–7.

5 Id. ¶ 8.

6 Id.

7 Id. ¶¶ 1, 9.

8 Id. ¶ 10.

9 Id. ¶¶ 9–10.

10 Id. ¶ 2.

Upon returning to North Carolina, Oldham shared the details of Abashidze’s

sexual assault with her husband.12 She also sought advice from her professional

mentor and former fencing coach, Ed Korfanty, a longtime friend of Glon’s.13 In

January 2018, Korfanty called Glon and spoke with him about the assault.14 Glon,

in turn, spoke with Abashidze, and the two decided “Glon would not share

information about Abashidze’s misconduct with Penn State’s Title IX Coordinator

or anyone else in the Penn State Athletic Department.”15

The following month, Penn State’s fencing team competed in a tournament

at Duke University in Durham, North Carolina—Oldham’s hometown.16 Glon and

Abashidze traveled with the team to Durham, and Glon and Oldham arranged to

meet.17 During their meeting, Oldham detailed what Abashidze did to her on the

plane and gave him a written summary of the assault.18 She asked Glon if he was

going to report Abashidze’s assault to the Penn State Athletic Department, and he

responded, “No.”19 Glon then attempted to convince Oldham not to report the

incident to the United States Olympic and Paralympic Committee’s SafeSport

program—an independent, Congressionally created organization granted

12 Id. ¶ 38.

13 Id. ¶ 39.

14 Id. ¶ 40.

15 Id. ¶¶ 41–42.

16 Id. ¶¶ 8, 43.

17 Id. ¶¶ 43–44.

18 Id. ¶ 45.

“exclusive authority to respond to sexual misconduct within the US Olympic and

Paralympic Committee and each sport’s National Governing Body”—by asserting

that if the assault became known, it would ruin her reputation and no one would

believe her.20 Then, Glon brought Abashidze into the conversation with Oldham

and directed him to apologize to her.21

Following this February 2018 encounter, unnamed individuals advised

Oldham to report the sexual assault to SafeSport.22 Indeed, the passenger seated to

Oldham’s right on the plane submitted a report to SafeSport detailing what he or

she saw.23 Nevertheless, Oldham was hesitant to do so herself, fearful of the

negative professional and reputational consequences Glon mentioned.24

In April 2018, Oldham attended a USA Fencing North America Cup

tournament in Richmond, Virginia.25 Glon was also at the tournament, coaching

members of the Penn State fencing team, as was Korfanty, Oldham’s mentor and

former coach.26 Korfanty arranged for the three to meet.27 Over coffee, Glon again

pressured Oldham not to engage with SafeSport, asserting that Oldham “would not

be believed if the story was uncovered or made public” and that “SafeSport would

20 Id. ¶¶ 48, 48 n.4.

21 Id. ¶ 50.

22 Id. ¶ 52.

23 Id. ¶ 51.

24 Id. ¶ 52.

25 Id. ¶ 54.

26 Id.

take no action against Abashidze.”28 Glon told Oldham that if she was questioned

by SafeSport, she should refute the allegations filed by third-party witnesses.29 He

then stressed “what a ‘good guy’ Abashidze was,” explaining how “the growing

fallout from the assault was causing him anxiety, stress, and a loss of sleep.”30

Oldham, for her part, suggested to Glon that he had a duty to report the incident to

Penn State.31

On June 30, 2018, Oldham’s husband (acting without Oldham’s knowledge)

contacted Penn State’s Athletic Director about the assault.32 Penn State’s Title IX

Coordinator, Defendant Christopher Harris, and another official in the Penn State

Athletic Department spoke with Oldham’s husband by phone, explaining that his

report of Oldham’s allegations against Abashidze and Glon that day was “the first

they heard of the situation.”33 Harris and others then organized a phone interview

with Oldham on August 14, 2018, during which Oldham detailed Abashidze’s

assault and Glon’s refusal to report it.34 She asked Harris to investigate both Penn

State employees, and, in response, he began an Affirmative Action Office

(“AAO”) investigation into matter.35

28 Id. ¶¶ 55–56.

29 Id.

30 Id. ¶ 57.

31 Id. ¶ 58.

32 Id. ¶ 72.

33 Id. ¶¶ 73–74.

34 Id. ¶ 75.

Although Oldham did not hear from Harris between August 2018 and

February 2019, the third-party allegations filed with SafeSport received

considerable attention. Contrary to Glon’s assertion that SafeSport “would take no

action against Abashidze,”36 the independent organization “investigated the

allegations against Abashidze, found him to be responsible for the assault, and

publicly suspended Abashidze from any association or involvement with USA

Fencing sanctioned events and programs in 2018.”37 Abashidze appealed the

suspension, and SafeSport convened an arbitration hearing to adjudicate the

matter.38 During the arbitration proceedings, which were held in December 2018,

Abashidze, Glon, Oldham, and others testified.39 Abashidze and Glon disputed

Oldham’s description of the assault, with both men labeling Oldham a “liar.”40 But,

ultimately, the arbitration panel found Abashidze responsible for the assault and

publicly suspended him from any involvement with USA Fencing for a year.41

During this time, Oldham experienced “harassment and retaliation through

electronic media and in person at international competitions, which was instigated

by Abashidze’s and Glon’s falsehoods shared with their friends and supporters in

the fencing community and those who were doubters of the burgeoning

36 Id. ¶ 56.

37 Id. ¶ 60.

38 Id. ¶ 61.

39 Id. ¶¶ 61, 119.

40 Id. ¶ 119.

international #metoo movement.”42 For example, Oldham heard colleagues

“minimize and dismiss the assault because Abashidze did not ‘present an

immediate threat to minors’” and “merely ‘brushed someone’s arm on a plane.’”43

As a result, Oldham “dramatically reduced her attendance at regional- and

national-level fencing tournaments in the United States, international tournaments,

games and events, workshops, and collegiate recruitment events.”44 Oldham “felt

too uncomfortable to attend an invitational tournament held at Penn State the

weekend of November 3, 2018.45 Additionally, it is Oldham’s belief that Penn

State and other NCAA fencing programs headed by friends of Glon and Abashidze

refused to recruit or offer fencing scholarships to any of her students.46 This

reduced the appeal of her fencing academy, leading “recruitable (college-bound)

athletes” to leave her academy and instead join “a competing neighboring club.”47

In January 2019, Oldham learned that Glon interfered with her application

for a coaching position with the fencing program at the University of North

Carolina-Chapel Hill (“UNC”).48 Glon personally called the UNC fencing team’s

42 Id. ¶ 78.

43 Id. ¶ 108.

44 Id.

45 Id. ¶ 104. Oldham also highlights “an elite camp at Glon’s friend Korfanty’s club in Oregon”

held in May 2019, from which she and several of her club’s members were “abruptly dis-

invited,” id. ¶ 110, and the 2021 NCAA Fencing Championship, which was held at Penn State

in March 2021 and “where one of Oldham’s proteges competed for an individual championship

and placed second.” Id. ¶ 105.

46 Doc. 105 ¶ 107.

47 Id.

head coach “to see if he can do anything about Jennifer.”49 Around this time,

Oldham also applied for but did not receive a coaching position at Northwestern

University.50

The following month, Oldham contacted Penn State for an update on the

AAO investigation.51 Harris responded shortly after and emailed her a copy of the

AAO Initial Determination, which “substantiated and admitted as true [Oldham’s]

factual allegations of the assault and harassment by Abashidze.”52 Despite this

factual finding, the Initial Determination concluded that Abashidze had not

violated any Penn State policy.53 Additionally, it did not discuss Glon’s failure to

report Abashidze’s assault.54

Oldham later received the AAO Final Determination, which “reached the

same conclusions about Abashidze’s assaultive behavior and the University

policies,” and likewise made no mention of Glon’s “failure and refusal to report

Oldham’s sexual assault.”55 Although Penn State’s Title IX policy requires the

University to permit an alleged victim of sexual assault “to review and provide

49 Id.

50 Id.

51 Id. ¶ 80.

52 Id. ¶ 81.

53 Id. ¶ 82.

54 Id. ¶ 83.

comment or corrections” on an AAO Final Determination, Harris did not afford

Oldham this opportunity.56

That said, at some point in 2019 following Harris’s investigation, Penn State

fired Abashidze, removing him from the fencing team coaching staff.57 According

to Oldham, Penn State did so “only when it had no choice, because Abashidze’s

public suspension from USA Fencing for sexual misconduct made him ineligible to

work as an NCAA Fencing coach at Penn State.”58

B. Procedural History

Oldham filed her initial Complaint on May 27, 2020, in the United States

District Court for the Middle District of North Carolina.59 The Defendants moved

to dismiss the claim for, among other things, lack of personal jurisdiction.60 In the

alternative, Glon, Penn State, and Harris moved to transfer the case here, to the

United States District Court for the Middle District of Pennsylvania.61

On December 16, 2020, the Honorable Thomas D. Schroeder, Chief Judge

of the Middle District of North Carolina, granted the motions to transfer, thereby

rendering the motions to dismiss moot.62 Chief Judge Schroeder reasoned that the

Middle District of Pennsylvania was “[a] more appropriate venue for Oldham’s

56 Id. ¶ 87.

57 Id. ¶ 124.

58 Id.

59 Doc. 1.

60 Doc. 22; Doc. 24; Doc. 31.

61 Doc. 22; Doc. 24.

claims” because it is where “all Defendants reside” and “the bulk of the witnesses

to Oldham’s sexual harassment and discrimination claims, as well as the witnesses

who can testify as to Penn State’s investigations into those claims, are located

there.”63

On October 26, 2021, Oldham filed her Amended Complaint, which asserted

seven causes of action:

 Count I – violation of Title IX and civil conspiracy for deliberate

indifference against all Defendants64;

 Count II – violation of Title IX and civil conspiracy for retaliation /

hostile work environment against all Defendants65;

 Count III – defamation against Penn State, Glon, and Abashidze66;

 Count IV – negligent failure to train and/or supervise its

agents/employees on sexual misconduct claims against Penn State,

Harris, and Glon67;

 Count V – battery against Penn State and Abashidze68;

 Count VI – negligence / gross negligence against all Defendants69;

and

 Count VII – negligent/intentional infliction of emotional distress

against all Defendants.70

63 Id. at 17–18.

64 Doc. 105 ¶¶ 113–34.

65 Id. ¶¶ 135–43.

66 Id. ¶¶ 144–48.

67 Id. ¶¶ 149–56.

68 Id. ¶¶ 157–64.

69 Id. ¶¶ 165–71.

The Defendants moved to dismiss the Amended Complaint.71 Those motions have

been fully briefed and are now ripe for disposition.72

II. LAW

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff fails to “state a claim upon which

relief can be granted.” Following the landmark decisions of Bell Atlantic Corp. v.

Twombly73 and Ashcroft v. Iqbal,74 “[t]o survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’”75 The United States Court of Appeals for the Third

Circuit has instructed that “[u]nder the pleading regime established by Twombly

and Iqbal, a court reviewing the sufficiency of a complaint must take three steps”:

(1) “take note of the elements the plaintiff must plead to state a claim”;

(2) “identify allegations that, because they are no more than conclusions, are not

entitled to the assumption of truth”; and (3) “assume the[] veracity” of all “well-

pleaded factual allegations” and then “determine whether they plausibly give rise

to an entitlement to relief.”76

71 Doc. 106 (Penn State / Harris); Doc. 108 (Glon); Doc. 109 (Abashidze).

72 Abashidze: Doc. 117; Doc. 126; Doc. 131.

Glon: Doc. 115; Doc. 124; Doc. 134.

Penn State / Harris: Doc. 113; Doc. 125; Doc. 133.

73 550 U.S. 544 (2007).

74 556 U.S. 662 (2009).

75 Id. at 678 (quoting Twombly, 550 U.S. at 570).

76 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

III. ANALYSIS

In their motions to dismiss, the Defendants challenge the Amended

Complaint on a series of independent procedural and substantive grounds. Given

their respective legal interests and potential liabilities, Abashidze, Glon, and Penn

State / Harris filed separate briefs with distinct legal arguments. That said, the

Defendants generally address the same three issues: (a) choice of law; (b) statute of

limitations; and (c) the merits of Oldham’s seven causes of action. The Court does

the same.

A. Choice of Law

The Defendants argue that Pennsylvania law (not North Carolina law)

applies here for three reasons: (1) following a change of venue under 28 U.S.C. §

1406(a), the recipient district court must apply the law of the state where it sits77;

(2) Pennsylvania’s “Borrowing Statute” requires the application of “whichever

[state law] first bars the claim”—here, Pennsylvania78; and (3) for the claims

presenting a “true conflict,” Pennsylvania has the greater interest.79 In response,

Oldham ignores the Defendants’ arguments and instead asks the Court to adopt the

rule of lex loci delicti—that is, to apply “the substantive law of the state where the

77 Doc. 113 at 5–6 (citing Gerena v. Korb, 617 F.3d 197, 204–05 (2d Cir. 2010)); see also Doc.

131 at 2 (citing Panthera Rail Car LLC v. Kasgro Rail Corporation, 985 F. Supp. 2d 677, 690

(W.D. Pa. 2013)).

78 Doc. 113 at 6–7 (citing 42 Pa. C.S. § 5521(b)); see also Doc. 134 at 10.

injury is felt.”80 According to Oldham, because “materially all injury has been felt

in [her] home state of North Carolina,” North Carolina law should govern.81 The

merits of Oldham’s position notwithstanding, the Court addresses each of the

Defendants’ arguments in turn.

1. Change of Venue

First, the Defendants assert that consistent with the United States Court of

Appeals for the Second Circuit’s holding in Gerena v. Korb,82 Pennsylvania law

applies to all of Oldham’s claims because following a transfer for change of venue

under 28 U.S.C. § 1406(a), the recipient district court “logically applies the law of

the state in which it sits.”83 But the Court reads this ruling differently.

In Gerena, the Second Circuit held that rather than automatically dictating

the outcome of a choice-of-law analysis, a § 1406(a) transfer for change of venue

simply requires the recipient district court to apply the choice-of-law rules of the

state in which it sits.84 The Second Circuit explained that if venue was improper in

New York (i.e., the state in which that case was initially filed) under § 1406(a),

“then the district court correctly applied Connecticut [i.e., the state of the recipient

80 Doc. 125 at 7.

81 Id.

82 617 F.3d 197, 204–05 (2d Cir. 2010).

83 Doc. 113 at 5; see also Doc. 131 at 2 (“In accordance with the decision in Panthera, [985 F.

Supp. 2d at 690], since the reason for the transfer [to the Middle District of Pennsylvania] was

jurisdictional, Pennsylvania law must be applied as the law of the forum state rather than the

law of the transferring state of North Carolina.”).

district] choice of law and Connecticut procedure.”85 This understanding of Gerena

accords with the rulings of the United States Court of Appeals for the Fifth Circuit

in National Union Fire Insurance Co. v. American Eurocopter Corp.86 and the

United States Court of Appeals for the Sixth Circuit in GBJ Corp. v. Eastern Ohio

Paving Co.87

Accordingly, the Second Circuit’s holding in Gerena does not end the

choice-of-law analysis; rather, it guides the Court on how to begin. Consistent with

that decision, to determine which state’s laws govern the underlying claims and

their statutes of limitations, the Court must apply Pennsylvania’s choice-of-law

rules.

2. Pennsylvania’s Borrowing Statute

To that end, the Defendants next argue that on the discrete issue of whether

to apply Pennsylvania’s or North Carolina’s statute of limitations’ accrual rules—

that is, distinct from the determination of which state’s substantive law governs

each cause of action—the Commonwealth’s “borrowing statute” dictates that

85 Id. at 205 (because the transfer occurred under 28 U.S.C. § 1404(a), the Second Circuit held

“it must be determined whether personal jurisdiction over [the defendant] existed in New York,

such that New York choice of law should have governed the claims against him”)

86 692 F.3d 405, 408 n.3 (5th Cir. 2012) (“The choice-of-law rules of the transferee state apply if

a diversity suit was transferred from a district court that had no personal jurisdiction over the

defendant or where venue was otherwise improper.”).

87 139 F.3d 1080, 1084 (6th Cir. 1998) (“When a case is transferred” under 28 U.S.C. § 1406(a)

because of improper venue and a lack of jurisdiction, “the choice-of-law rules of the tanferee

court apply.”); see also Panthera, 985 F. Supp. 2d at 690 (“Where a case is transferred from

one federal court district to cure a jurisdictional defect—as is the case here—the transferee

Pennsylvania’s statute of limitations applies to all of Oldham’s claims.88 The Court

agrees.

Under Pennsylvania law, the choice between Pennsylvania’s or another

state’s statute of limitations’ accrual rules is not resolved by a conflict-of-law

analysis.89 Instead, Pennsylvania courts either apply the Commonwealth’s statute

of limitations, or, when the claim accrues in a foreign jurisdiction, look to the

Commonwealth’s “borrowing statute” for guidance.90 This statute provides that

“[t]he period of limitation applicable to a claim accruing outside this

Commonwealth shall be either that provided or prescribed by the law of the place

where the claim accrued or by the law of this Commonwealth, whichever first bars

the claim.”91

For the claims at issue here, the limitations periods prescribed by

Pennsylvania law are equal to or shorter than their equivalents under North

Carolina law:

88 Doc. 113 at 6–8; Doc. Doc. 134 at 10.

89 See Hartz v. Diocese of Greensberg, 94 F. App’x 52, 55 (3d Cir. 2004) (rejecting plaintiff’s

claim that district court “mistakenly refused to engage in a conflict-of-law analysis to

potentially apply another state’s statute of limitations’ accrual rules” because under

Pennsylvania’s borrowing statute, “no conflict-of-law analysis was necessary, and the District

Court correctly applied Pennsylvania’s accrual rule”).

90 Stephens v. Clash, 2014 WL 2808599, at *3 (M.D. Pa. June 19, 2014) (Connor, J.) (citing Ross

v. Johns-Manville Corp., 766 F.2d 823, 826 n.3 (3d Cir. 1985)).

 Counts I & II (Title IX): Pennsylvania applies a two-year limitations

period92; North Carolina applies a three-year limitations period.93

 Count III (Defamation): Pennsylvania’s limitations period is one

year94; North Carolina’s limitations period is likewise one year.95

 Count IV (Negligent Supervision/Training): Pennsylvania applies a

two-year limitations period96; North Carolina applies a three-year

limitations period.97

 Count V (Battery): Pennsylvania’s limitations period is two years98;

North Carolina’s limitations period is three years.99

 Count VI (Negligence): Pennsylvania’s limitations period is two

years100; North Carolina’s limitations period is three years.101

92 See Kaseteleba v. Judge, 325 F. App’x 153, 156 (3d Cir. 2009) (Because “[t]he period of

limitations for a § 1983 action is governed by the forum state’s statute for personal injury

actions, . . . in Pennsylvania, the limitations period for a § 1983 action is two years”).

93 See McClean v. Duke University, 376 F. Supp. 3d 585, 597 (M.D.N.C. 2019) (“The statute of

limitations for a Title IX claim is determined by reference to the state statute most closely

analogous to Title IX, which is usually a personal injury cause of action,” and “[i]n North

Carolina, the statute of limitations for a personal injury claim is three years.”) (citations

omitted).

94 42 Pa. C.S. § 5523(1).

95 N.C. Gen. Stat. § 1-54(3).

96 See Toy v. Metropolitan Life Insurance Co., 863 A.2d 1, 14 (Pa. Super. 2004) (holding that

trial court did not “abuse[] its discretion” when is “dismissed [the plaintiff’s] negligent

supervision claim because [she] failed to raise the claim within the two-year statute of

limitations”).

97 See Foster v. Crandell, 638 S.E.2d 526, 536 (N.C. App. 2007) (noting that claim for

negligently failing to supervise is subject to a “three-year statute of limitations”).

98 42 Pa. C.S. § 5524(1).

99 N.C. Gen. Stat. § 1-52(16).

100 42 Pa. C.S. § 5524(2).

 Count VII (Negligent/Intentional Infliction of Emotional Distress):

Pennsylvania applies a two-year limitations period102; North Carolina

applies a three-year limitations period.103

Accordingly, the Court must apply Pennsylvania’s statutes of limitations for all

seven claims.

3. Choice of Law Analysis

Finally, the Court must determine whether Pennsylvania or North Carolina

law governs the substance of Oldham’s claims. As discussed, the Court performs

this analysis under Pennsylvania’s choice of law rules,104 which proceed in two

steps: “Pennsylvania courts first consider whether a ‘true conflict’ exists between

the two states,” and, if yes, they must then determine “which state has the most

significant relationship to the occurrence and the parties.”105

a. True Conflict

A “true conflict” exists when (1) the states’ laws are “actually

incompatible,” and (2) “both jurisdictions have a governmental policy or interest

102 See Quintana v. City of Philadelphia, 2018 WL 3632144, at *9 (E.D. Pa. July 30, 2018)

(holding that plaintiff’s “claims for intentional and negligent infliction of emotional distress

are barred by Pennsylvania’s two-year statute of limitations”).

103 See Dickens v. Puryear, 276 S.E.2d 325, 330 n.8 (N.C. 1981) (holding that the tort of

intentional infliction of emotional distress is “governed by the more general three-year statute

of limitations”) (citing N.C. Gen. Stat. § 1-52(5)).

104 Panthera, 985 F. Supp. 2d at 690; see also Melmark, Inc. v. Schutt, 206 A.3d 1096, 1104 (Pa.

2019) (“Courts conduct a choice-of-law analysis under the choice-of-law rules in the forum

state.”).

that would be impaired by the application of the other state’s law.”106 The differing

states’ laws are considered “actually incompatible” if there are “relevant

differences between [them] that would affect the disposition of the litigation.”107

Absent relevant differences, “there is no conflict, and the court may refer to the

states’ laws interchangeably.”108

If there are relevant differences between the laws, the court must then

“examine the governmental policies underlying each law, and classify the conflict

as ‘true,’ ‘false,’ or an ‘unprovided-for’ situation.”109 Pennsylvania courts consider

a conflict “false” when only one state’s interest “will be harmed if the Court does

not apply its law.”110 In that instance, “the law of the only interested jurisdiction

should be applied.”111 A conflict is considered “unprovided-for” when “no

jurisdiction’s interests would be impaired if its laws were not applied.”112 For

unprovided-for tort cases, “courts use the lex loci delicti, or ‘place of the wrong,’

rule and apply the law of the state where the harm occurred.”113

106 Toll v. Tannenbaum, 982 F. Supp. 2d 541, 549–50 (E.D. Pa. 2013), aff’d, 596 F. App’x 108

(3d Cir. 2014) (citing Hammersmith v. TIG Insurance Co., 480 F.3d 220, 229–30 (3d Cir.

2007)).

107 Taylor v. Mooney Aircraft Corp., 265 F. App’x 87, 90 (3d Cir. 2007).

108 Id. (citation omitted).

109 Hammersmith, 480 F.3d at 230.

110 Id. at 232.

111 Taylor, 265 F. App’x at 95.

112 Budget Rent-A-Car System, Inc. v. Chappell, 407 F.3d 166, 170 (3d Cir. 2005).

113 Miller v. Native Link Construction, LLC, 2017 WL 3536175, at *10 (W.D. Pa. Aug. 17, 2017)

The Defendants argue, and Oldham does not dispute, that Counts I & II

(Title IX), III (defamation), V (battery), and VI (negligence) do not present a “true

conflict” because the relevant Pennsylvania and North Carolina laws are wholly

compatible—that is, the legal standards applied to these claims are

indistinguishable.114 However, the states’ laws regarding negligent supervision

(Count IV) and negligent/intentional infliction of emotion distress (Count VII) are

“actually incompatible”:

 Count IV (Negligent Supervision): Under Pennsylvania law, a

plaintiff must show that her loss resulted from “(1) a failure to

exercise ordinary care to prevent an intentional harm by an employee

acting outside the scope of his employment, (2) that is committed on

the employer’s premises, (3) when the employer knows or has reason

to know of the necessity and ability to control the employees.”115 But

North Carolina does not require a plaintiff asserting negligent

114 In her opposition to Glon’s motion to dismiss, Oldham appears to question (without analysis)

whether the states’ laws on defamation are “actually incompatible.” See Doc. 124 at 24 (“If

Pennsylvania requires greater particularity for defamation allegations, then North Carolina law

should govern.”). But under Pennsylvania and North Carolina law, a claim for defamation

includes the same elements: (1) “[t]he defamatory character of the communication”; (2) “[i]ts

publication by the defendant”; (3) “[i]ts application to the plaintiff”; (4) “[t]he understanding

by the recipient of its defamatory meaning”; and (5) “[t]he understanding by the recipient of it

as intended to be applied to the plaintiff.” Graboff v. Colleran Firm, 744 F.3d 128, 135 (3d

Cir. 2014); accord Desmond v. News & Observer Publishing Co., 772 S.E.2d 128, 135 (N.C.

App. 2015)). Further, to establish that the allegedly defamatory statements were published to

a third party, both states require a plaintiff to “identify specifically what allegedly defamatory

statements were made, and to whom they were made.” Moses v. McWilliams, 549 A.2d 950,

960 (Pa. Super. 1988); accord Horne v. Cumberland County Hospital System, Inc., 746 S.E.2d

13, 20 (N.C. App. 2013) (noting that a complaint that “fails to identify the allegedly defamatory

remarks made by [the defendant] or to specific when they were made,” and holding that “[t]his

lack of specificity is, by itself, a sufficient basis to support the dismissal of plaintiff’s

defamation claim”).

115 Belmont v. MB Investment Partners, 708 F.3d 470, 487–88 (3d Cir. 2013) (citing Dempsey v.

supervision to show that the injury occurred on the employer’s

premises.116

 Count VII (Negligent/Intentional Infliction of Emotional Distress):

Under Pennsylvania law, a plaintiff must allege physical injury

attendant to the emotional distress.117 But North Carolina law does not

require physical injury.118

Notwithstanding the relevant differences in the states’ legal standards for

these claims, the Defendants argue that no “true conflict” exists because North

Carolina has not “articulated a legitimate interest” that would be harmed if the

Court were to apply Pennsylvania’s version of these laws.119 The Court disagrees.

For the negligent supervision claim, the Defendants assert that

Pennsylvania’s “premises requirement” is “an indicator of, and consistent with,

[the Commonwealth’s] interest in safeguarding employers against liability for

116 Medlin v. Bass, 398 S.E.2d 460, 462 (N.C. 1990) (“North Carolina recognizes a claim for

negligent employment or retention when the plaintiff proves”: (1) “the specific negligent act

on which the action is founded”; (2) “incompetency, by inherent unfitness or previous specific

acts of negligence, from which incompetency may be inferred”; (3) “either actual notice to the

master of such unfitness or bad habits, or constructive notice, by showing that the master could

have known the facts had he used ordinary care in ‘oversight and supervision’”; and (4) “that

he injury complained of resulted from the incompetency period.”) (emphasis and citation

omitted).

117 Armstrong v. Paoli Memorial Hospital, 633 A.2d 605, 609 (Pa. Super. 1993) (“Physical injury

must be averred to sustain an action for negligent infliction of emotional distress.”); Hart v.

O’Malley, 647 A.2d 542, 554 (Pa. Super. 1994) (“[I]t is clear that in Pennsylvania, in order to

state a claim under which relief can be granted for the tort of intentional infliction of emotional

distress, the plaintiffs must allege physical injury.”).

118 See, e.g., Dickens v. Puryear, 276 S.E.2d at 332–33 (“If ‘physical injury’ means something

more than emotional distress or damage to the nervous system, it is simply not an element of

the tort of intentional infliction of emotional distress. As noted, plaintiff in Stanback never

alleged that she had suffered any physical injury, yet we held that she had stated a claim for

intentional infliction of mental distress.”) (citing Stanback v. Stanback, 254 S.E.2d 611, 623

(N.C. 1979)).

intentional torts committed by employees when those employees are not on the

employer’s premises.”120 Citing the ruling by the United State District Court for

the Eastern District of Pennsylvania in Manley v. Navmar Applied Sciences Corp.,

the Defendants argue that this “interest in protecting employers from liability has

been considered by courts in this District when conducting a choice of law

analysis.”121 Bizarrely, the Defendants then claim that “North Carolina has not

stated a similar interest for negligent supervision claims.”122 The Defendants

apparently misread the very case they cite.

In Manley, the court considered the competing laws governing negligent

supervision claims in Arizona and Pennsylvania.123 The court explained that

Arizona requires a showing of “willful misconduct” for negligent supervision

claims, but Pennsylvania “does not appear to have any similar bar to relief.”124

Although the court cited no evidence that either Pennsylvania’s courts or

legislature ever considered imposing a “willful misconduct” requirement for

negligent supervision claims or expressly deemed such a requirement contrary to

the Commonwealth’s interests, the court nevertheless held that “there is a true

120 Doc. 133 at 7.

121 Id. at 7–8 (citing Manley v. Navmar Applied Sciences Corp., 2013 WL 271818, at *6 (E.D. Pa.

Jan. 24, 2013)).

122 Id. at 8.

123 2013 WL 271818 at *5–6.

conflict between” Pennsylvania and Arizona law because “both states would have

an interest in applying their laws to the present suit.”125

Applying that standard here, this Court concludes that both Pennsylvania

and North Carolina have an interest in enforcing their laws on negligent

supervision: Pennsylvania to shield employers from suits stemming from their

employees’ off-site actions; North Carolina to protect victims of tortious conduct

by imposing liability on employers for a wider array of employee conduct. As in

Manley, because a true conflict exists, this Court must then proceed to the second

step of Pennsylvania’s choice of law analysis and determine which state has a more

significant interest to the events underlying, and parties involved in, the instant

action.126

For the infliction of emotional distress claims, the Defendants again argue

that whereas Pennsylvania has “a legitimate interest” in enforcing its infliction of

emotional distress laws—which require allegations and proof of physical injury—

“North Carolina has not.”127 But, again, the Court disagrees. The Supreme Court of

Pennsylvania traces the denial of recovery for purely “psychic injury”—that is, an

injury with no physical manifestations—“to three principal concerns: medical

science’s difficulty in proving causation, the danger of fraudulent or exaggerated

125 Id.

126 Id. at *6.

claims, and the perception that recognition of such a cause of action would

precipitate a flood of litigation.”128

The Supreme Court of North Carolina has likewise directly confronted this

issue. In Dickens v. Puryear, the North Carolina Supreme Court exhaustively

analyzed its relevant precedents on the matter and explicitly declined to impose a

“physical injury” requirement for IIED claims.129 The North Carolina Supreme

Court considered concerns about foreseeability, causation, and proof (i.e., the same

issues identified by its Pennsylvania counterpart) but nevertheless deemed the

showing of physical injury unjustified.130 Given the depth of the North Carolina

Supreme Court’s analysis and seriousness with which it considered this issue, the

Court cannot accept the Defendants’ assertion that “only Pennsylvania’s interest

would be impaired by application of the law of the other state.”131 Accordingly, a

“true conflict” exists as to this Count as well.

b. Significant Relationship

Because a “true conflict” exists between the relevant Pennsylvania and

North Carolina laws, the Court must “assess[], under choice-of-law principles, . . .

which state’s law should be applied to the facts of the case.”132 For this, “[s]tates

formerly applied the lex loci delicti, or ‘place of injury,’ rule, under which the law

128 Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988, 992 (Pa. 1987).

129 276 S.E.2d at 330–35.

130 Id.

131 Doc. 133 at 7.

of the state where the injury occurred would be applied”133—that is, the choice-of-

law rule Oldham asks the Court to apply here.134 But as the Supreme Court of

Pennsylvania explained in Melmark, Inc. v. Schutt, “Pennsylvania, like a majority

of other states, has abandoned this rule.”135 Instead, Pennsylvania courts “apply the

law of the state having the most significant contacts or relationships with the

particular issue.”136 For tort cases, the relevant contacts “are enumerated in

Restatement (Second) of Conflict of Laws § 145(2)(a)–(d), and include: ‘(a) the

place where the injury occurred, (b) the place where the conduct causing the injury

occurred, (c) the domicile, residence, nationality, place of incorporation and place

of business of the parties, and (d) the place where the relationship, if any, between

the parties is centered.’”137

First, as Oldham explains, because she lives and operates her fencing club in

North Carolina, the injury has primarily “been felt” in North Carolina.138 That said,

the location where Oldham’s alleged injuries occurred varies. The alleged assault

took place on an airplane traveling from Oregon to Chicago—in neither

Pennsylvania nor North Carolina.139 Further, Oldham alleges that she was

133 Id. at 1107.

134 Doc. 125 at 7.

135 206 A.3d at 1107.

136 Taylor, 265 F. App’x at 91 (internal quotation marks and citation omitted); see also Griffith v.

United Air Lines, Inc., 203 A.2d 796, 805 (Pa. 1964) (abandoning the lex loci delicti rule “in

favor of a more flexible rule which permits analysis of the policies and interest underlying the

particular issue before the court”).

137 Taylor, 265 F. App’x at 91 n.4.

138 Doc. 125 at 9.

“subjected to a hostile environment in Penn State programs and activities,”

including, most notably, “the NCAA Championship held at Penn State in March

2021, where one of Oldham’s proteges competed for an individual championship

and placed second.”140 To the extent Oldham suffered injuries in relation to these

Penn State programs and events, the injuries—like the events themselves—

occurred in Pennsylvania. Accordingly, the Court agrees with the Defendants that

this factor is not dispositive.141

Second, and most important to this Court’s analysis, is the place where the

conduct causing the injuries occurred. For this, the Court finds particularly

instructive Chief Judge Schroeder’s analysis supporting his decision to transfer the

instant case from the Middle District of North Carolina to the Middle District of

Pennsylvania:

At the center of all of Oldham’s claims is the assault

allegedly perpetrated by Abashidze and the failure of the

responsible officials to properly act on Oldham’s reports.

In relation to these claims, the vast majority of

underlying events did not occur in the Middle District of

North Carolina. Rather, with the exception of the assault

itself (which was perpetrated mid-flight over the Great

Plains region), the substantial events alleged in this case

occurred in Centre County, Pennsylvania, in the Middle

District of Pennsylvania. For example, Glon’s initial

failure to report Oldham’s assault became actionable

following his January 2018 phone call with Korfanty. At

the time, Glon was in the Pennsylvania district. Similarly,

the alleged conspiracy to cover-up the assault was

140 Id. ¶¶ 101, 104–05.

141 See Doc. 134 at 6 (“[T]he location of [Oldham’s] alleged injuries varies and is not dispositive

formed between Glon and Abashidze in that district. All

of Penn State’s investigations into Oldham’s assault were

conducted in Pennsylvania, and all of the related reports

were produced there. Likewise, all of [the] Defendants’

alleged failures to sufficiently train coaching staff in Title

IX procedures occurred in the Pennsylvania district.142

For these reasons, the second factor weighs heavily in favor of Pennsylvania.

The third factor, concerning the domicile of the parties, is a wash. Oldham

lives and operates her fencing club in North Carolina.143 But at all relevant times,

the individual Defendants lived and worked in Centre County, Pennsylvania, and

Penn State is (obviously) a Pennsylvania institution.144

The final factor (i.e., the place where the relationship is centered) weighs in

Pennsylvania’s favor. Oldham’s relationship with Penn State (and, therefore,

Harris) is predicated on her and her clients’ attendance at Penn State fencing

programs, events, and activities as well as her clients’ admission to, and

membership on the fencing team of, Penn State.145 To the extent Oldham

previously held or maintains any direct relationship with Glon, that appears to

relate solely to Glon’s position as the head coach of Penn State’s fencing team.146

And for Abashidze, Oldham alleges that the two were “generally acquainted,” but

she provides no further details on where that relationship was “centered.”147

142 Doc. 36 at 14–15 (internal citations omitted).

143 Doc. 105 ¶ 11.

144 Id. ¶¶ 12–15.

145 See id. ¶¶ 104–05, 111.

146 See, e.g., id. ¶¶ 38–59.

Taken together, these factors establish that Pennsylvania has a more

significant relationship with the parties and the events at issue than North Carolina.

As such, Pennsylvania law applies.

B. Statute of Limitations

The Defendants next move to dismiss all of Oldham’s claims as untimely

under the applicable statutes of limitations.148 Given the differing limitations

periods for, and underlying facts relevant to, each claim, the Court considers each

cause of action in turn.

1. Title IX Claims (Counts I & II)

As explained, in Pennsylvania, the limitations period for Title IX claims is

two years.149 Because Oldham filed her original Complaint on May 27, 2020, the

Title IX claims qualify as timely so long as the underlying tortious conduct

occurred after May 27, 2018.

The Defendants argue that Oldham’s Title IX claims are predicated on

“three discrete events” that all “occurred more than two years before Oldham filed

her Complaint on May 27, 2020.”150 Specifically, the Defendants focus on the

following: (1) December 12, 2017 – the alleged assault151; (2) February 2018 – the

conversation between Glon, Abashidze, and Oldham at a Duke University fencing

148 See Doc. 113 at 12–15; Doc. 115 at 15–17, 22–23, 31–32; Doc. 117 at 6–13.

149 See Kaseteleba, 325 F. App’x at 156.

150 Doc. 113 at 12 (emphasis omitted).

tournament when Glon told Oldham he would not report Abashidze’s assault to

Penn State and “attempted to manipulate and/or intimidate [her] by using his

stature in the sport and at Penn State to convince her not to report the incident”152;

and (3) April 2018 – Glon’s efforts at a fencing tournament in Virginia to

“pressure[] Oldham not to engage with SafeSport and, if she was questioned by

them, to refute the allegations filed by the third-party witness.”153 But that’s not

quite right.

For Count I (deliberate indifference), Oldham bases her claim against

Abashidze and Glon on the men’s “attempt to keep Oldham from reporting the

assault” as well as their later efforts “to foster a general belief that she was not

credible and should not be believed.”154 The Defendants are correct that a claim

related solely to the former accrued prior to May 27, 2018: Oldham “knew or

should have known” that Abashidze and Glon were attempting to stop her from

reporting the assault by no later than February 2018.155 However, the second

predicate (i.e., the alleged defamation campaign), concerns actions by Abashidze

and Glon that Oldham alleges occurred “[d]uring [a] six-month period” between

152 Id. ¶¶ 43–50, 118.

153 Id. ¶¶ 54–59, 118; see also Doc. 115 at 16 (“As Defendant Glon’s purported actions in January,

February, and April 2018 occurred more than two years before [Oldham] filed suit, they fall

outside Title IX’s statute of limitations.”); Doc. 117 at 6 (“[Oldham] indicates no such specific

actions were committed by Abashidze, let alone any tortious actions, after February 2018.”).

154 Doc. 105 ¶ 119.

155 D.D. v. Stockton University, 2019 WL 3369709, at *6 (D.N.J. July 26, 2019); see also Doc. 36

at 15 (“Glon’s initial failure to report Oldham’s assault became actionable following his

“August 2018 and February 2019.”156 That conduct falls squarely within the

limitations period. Although Oldham characterizes these efforts as components of

an “ongoing conspiracy” to “delay or avert potential consequences for Abashidze,”

because the predicates arguably constitute independent bases for this Title IX

claim, the Court declines to dismiss as untimely Count I as to Abashidze and Glon.

Similarly, the factual predicate to Count I as to Penn State and Harris

occurred within the limitations period. Oldham asserts that this claim did not

accrue prior to May 27, 2018, because Harris and other officials in the Penn State

Athletic Department did not learn about Abashidze’s sexual assault until Oldham’s

husband reported the incident on June 30, 2018, and Oldham “first became aware

of Abashidze and Glon’s defamatory campaign . . . in the latter half of 2018.”157 In

response, Penn State points to Oldham’s allegations that Glon refused to report the

assault to the Penn State and efforts to dissuade her from filing a report with

SafeSport and argues that “[b]ased on these allegations, a reasonable person in

Oldham’s position would have known as early as January 2018, but certainly by no

later than April 2018, that [Penn State and Harris] were not addressing her

allegations in a manner she deemed satisfactory.”158

156 Doc. 105 ¶¶ 77–78.

157 Doc. 125 at 11–12 (citing Doc. 105 ¶¶ 72–76, 78).

The Court finds this argument unpersuasive. Deliberate indifference, by

definition, requires actual knowledge.159 Given that Glon allegedly told Oldham

that he would not report Abashidze’s assault to the Penn State Athletic Department

and Harris allegedly informed Oldham that he had no knowledge of the incident

until Oldham’s husband contacted the University’s Athletic Director in June 2018,

it is incorrect to claim that a “reasonable person” would have known that Penn

State and Harris were acting in a deliberately indifferent fashion prior to that June.

As with Abashidze and Glon, the Court declines to dismiss Count I as to Penn

State and Harris on this basis.

For Count II (retaliation / hostile work environment), the result is the same.

Oldham alleges that Abashidze and Glon “systematically retaliated against [her]

for her cooperation with the SafeSport tribunal that eventuated in Abashidze’s

adjudication, suspension from USA Fencing, and eventual dismissal from his

position at Penn State.”160 Importantly, the Amended Complaint specifies when

Oldham first learned about this allegedly tortious conduct: “[Oldham] first became

aware of the Defendants’ calumnies when she was told of Glon’s interference with

her application for employment at the University of North Carolina in the latter

159 See Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999)

(holding that funding recipients are deliberately indifferent “only where the recipient’s

response to the harassment or lack thereof is clearly unreasonable in light of known

circumstances”) (emphasis added).

half of 2018, after the SafeSport inquiry commenced.”161 This allegedly retaliatory

conduct likewise serves as the factual predicate to Count II as to Penn State and

Harris,162 and as with Count I, Oldham alleges that her husband “first informed

Harris and [other senior officials in the Penn State Athletic Department] of the

Defendants’ threats and harassment in July 2018.”163 Accordingly, for all four

Defendants, this Count first became actionable no earlier than July 2018 and is

therefore timely.

2. Defamation (Count III)

With a one-year limitations period,164 Oldham’s defamation claim qualifies

as timely only if the relevant statement was published to a third party after May 27,

2019. Notably, “[i]n Pennsylvania, each publication of [a defamatory statement]

gives rise to an independent cause of action.”165

The Defendants argue that the Amended Complaint fails to identify any

defamatory statements against Oldham within a year of her initial Complaint.

Specifically, Penn State and Harris argue that Oldham alleges “only a single

alleged defamatory utterance by Glon and/or Abashidze,” which occurred during

the SafeSport arbitration proceeding in November 2018—more than a year before

161 Id. ¶ 138.

162 Id. ¶ 140 (“Penn State and Harris were repeatedly informed of these behaviors and allowed

them to continue unchecked.”).

163 Id.

164 42 Pa. C.S. § 5523(1).

165 Cogley v. Duncan, 32 A.3d 1288, 1290 n.5 (Pa. Super. 2011) (citing Graham v. Today’s Spirit,

she filed her initial Complaint in May 2020.166 For his part, Glon asserts that even

if the Court credits Oldham’s claims of Abashidze and Glon’s “purported

defamatory campaign”—thereby expanding the scope of relevant statements

beyond Glon’s and Abashidze’s November 2018 testimony—Oldham has admitted

that these efforts “concluded in April 2019.”167

Oldham responds that the defamation action is timely because “the alleged

facts indicate that Abashidze and Glon continued their campaign against Oldham

well into the second half of 2019 and beyond.”168 According to Oldham, based on

her treatment at various fencing events and inability to land a collegiate fencing

coaching position, “the only reasonable inference is that [Abashidze’s and Glon’s]

defamatory statements to fencing colleagues would have continued into the second

half of 2019, and likely to the present day.”169

But on this claim, Oldham has dug herself a hole from which she cannot

escape. Even if the Court agreed with Oldham that her allegations demonstrate that

Abashidze and Glon continued to make defamatory statements “into the second

half of 2019 and beyond,” the greater issue is the lack of specificity about these

purported statements. As the Court addresses more fully below, the problem here is

not that Oldham properly alleges a claim for defamation predicated solely on

166 Doc. 113 at 13 (citing Doc. 105 ¶ 110).

167 Doc. 115 at 22–23 (citing Doc. 105 ¶¶ 119–20).

168 Doc. 124 at 13 (cleaned up) (citing Doc. 105 ¶¶ 106, 137–39, 145–46).

statements that occurred outside the limitations period; the problem is that Oldham

does not properly allege a claim for defamation.

3. Failure to Train/Supervise (Count IV)

Under Pennsylvania law, negligent supervision and training claims are

subject to a two-year statute of limitations.170 Therefore, as with the Title IX

claims, these claims are timely only if the underlying tortious conduct occurred

after May 27, 2018.

The Defendants argue that Oldham’s negligent supervision and training

claims are “predicated either on [Penn State, Harris, and Glon’s] alleged failure to

supervise or train Abashidze before the alleged assault or [Penn State and Harris’s]

alleged failure to train Glon with respect to reporting Oldham’s allegation,” and,

accordingly, the accrual date is either December 12, 2017 (the date of the alleged

assault) or February 2018 (the month of Oldham’s alleged meeting with Glon).171

Oldham responds that the Defendants impermissibly narrow the scope of tortious

conduct—ignoring the alleged retaliatory actions by Abashidze and Glon—and

that by considering the relevant underlying conduct collectively, these claims

qualify as timely under the continuing tort doctrine.172 On this, the Court agrees

with Oldham—at least, in part.

170 Toy, 863 A.2d at 14.

171 Doc. 113 at 14 (citing Doc. 105 ¶¶ 1, 43–44).

Although courts disagree about how to categorize the “continuing tort

doctrine,”173 its function and application are well established: “when a defendant’s

conduct is part of a continuing practice, an action is timely so long as the last act

evidencing the continuing practice falls within the limitations period.”174 For

claims based on continuing tortious conduct, “the plaintiff is only barred from

recovering those damages that were ascertainable prior to the statutory period

preceding the lawsuit.”175 That said, “[d]iscrete acts” that constitute “separate

actionable [offenses]” do not implicate the continuing tort doctrine.176

For Count IV, Oldham alleges that Penn State, Harris, and Glon “neglected

their duty and failed” to (a) “provide adequate annual sexual misconduct policy

and Title IX training to all members of the Fencing Team’s coaching staff,”

(b) “ensure that all members of the Fencing Team’s coaching staff were able and

willing to comply with the spirit and letter of the University’s policies and Title

IX,” and (c) “ensure that all members of the Fencing Team’s coaching staff were

complying with University policies and Title IX, even when confronted with

173 Compare Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (“The continuing violations

doctrine is an equitable exception to the timely filing requirement.”) (internal quotation marks

and citation omitted), with Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1168 (Pa. Super. 2019)

(explaining that properly understood, “the ‘continuing tort doctrine’ is not a separate doctrine,

or an exception to the statute of limitations, as much as it is a straightforward application of

the statute of limitations”).

174 Cowell, 263 F.3d at 292; see also Kowalski, 206 A.3d at 1168 (“[W]hen there are continuing

or repeated wrongs that are capable of being terminated, a claim accrues every day the wrong

continues or each time it is repeated.”).

175 Kowalski, 206 A.3d at 1168.

[Oldham’s] specific reports that they were not.”177 The relevant “administrative

policy addressing discriminatory acts pursuant to Title IX” (i.e., “AD85 Sexual

and/or Gender-Based Misconduct and Harassment”) prohibits sexual harassment

and requires “Responsible Employee[s]” to “report incidents of possible Prohibited

Conduct to the Title IX Coordinator.”178 The University’s “sexual misconduct

policies” prohibit, among other things, “retaliation” against individuals involved in

“reporting, investigat[ing], or resol[ving]” alleged sexual misconduct violations.179

As this Court understands it, according to Oldham, the alleged failure to

train and supervise the Penn State fencing team coaching staff on these policies

resulted in Abashidze sexually assaulting her, Glon’s failure to report the incident,

and Abashidze and Glon’s retaliatory defamation campaign against her. Under this

theory for liability, Oldham’s negligent supervision and training claims fall within

the continuing tort doctrine—but only concerning Abashidze and Glon’s retaliatory

actions.

As a preliminary matter, the Court finds that the assault, the failure to report,

and the retaliatory campaign constitute discrete actionable offenses that must be

considered independently.180 To that end, the sexual assault does not implicate the

continuing tort doctrine. As the Defendants argue, this was a single occurrence—

177 Doc. 105 ¶¶ 153–55.

178 Id. ¶¶ 33–34.

179 Id. ¶ 37.

Oldham does not allege that Abashidze assaulted her repeatedly over an extended

period.181 Accordingly, Oldham’s claims based on the assault became actionable

the day of the incident, December 12, 2017, well outside of the limitations period

for Count IV.

Additionally, Glon’s failure to report likewise falls outside the parameters of

the continuing tort doctrine. The Court agrees with the Defendants that to the

extent Count IV is predicated on Glon’s refusal to notify the Penn State Athletic

Department of Oldham’s allegation, the claims accrued when Oldham first

informed Glon of the assault in February 2018.182

But the alleged retaliatory campaign qualifies as continuing tortious conduct

that extended into the limitations period. As discussed, Oldham alleges that she

“first became aware of Abashidze and Glon’s defamatory campaign . . . in the

latter half of 2018.”183 Further, Oldham asserts that this “campaign” continued into

2019: “[i]n January 2019, Oldham was told that Glon had retaliated against her by

interfering with her job prospects at UNC, when he called the UNC Fencing Head

Coach ‘to see if he can do anything about [Oldham].’”184 Because this “defamatory

campaign” included retaliatory conduct within two years of her original Complaint,

Oldham’s negligent supervision and training claims are timely.

181 See Doc. 113 at 13–14.

182 Id.; see also Doc. 36 at 15 (“Glon’s initial failure to report Oldham’s assault became actionable

following his January 2018 phone call with Korfanty.”).

183 Doc. 125 at 11–12 (citing Doc. 105 ¶¶ 72–76, 78).

4. Battery (Count V)

For Oldham’s battery claim, the statute of limitations is again two years.185

The Defendants assert that the “[t]he alleged assault by Abashidze . . . forms the

basis of Oldham’s battery claim,” and because the assault occurred more than two

years before Oldham filed the initial Complaint, the battery claim is barred by the

applicable statute of limitations.186 Oldham concedes that the assault occurred

outside the relevant limitations period, but argues the battery claim should

nevertheless proceed because it is subject to equitable tolling.187 Oldham is

mistaken.

As the Third Circuit explained in Oshiver v. Levin, Fishbein, Sedran &

Berman, “[e]quitable tolling functions to stop the statute of limitations where the

claim’s accrual date has already passed.”188 Federal courts recognize “three

principal, though not exclusive, situations in which equitable tolling may be

appropriate”:

(1) where the defendant has actively misled the plaintiff

respecting the plaintiff’s cause of action; (2) where the

plaintiff in some extraordinary way has been prevented

from asserting his or her rights; or (3) where the plaintiff

has timely asserted his or her rights mistakenly in the

wrong forum.189

185 42 Pa. C.S. § 5524(1).

186 Doc. 113 at 15 (citing 42 Pa. C.S. § 5524(1)–(2)).

187 Doc. 125 at 14–17.

188 38 F.3d 1380, 1387 (3d Cir. 1994), overruled on other grounds by Rotkiske v. Klemm, 890 F.3d

422, 428 (3d Cir. 2018) (en banc).

But Pennsylvania has adopted a more restrictive standard for equitably tolling its

statute of limitations: “[i]n Pennsylvania, judicial extensions of the statute of

limitations are expressly forbidden absent fraud or its equivalent.”190 Accordingly,

for Pennsylvania state law claims, plaintiffs cannot avail themselves of the second

or third bases for equitable tolling included in the “more lenient federal standard”

(i.e., extraordinary circumstances and mistakenly filing in the wrong forum)—

fraud or its equivalent is required.191

Here, Oldham does not argue that she was prevented from filing her state

law claims in a timely fashion because of the Defendants’ fraudulent or deceptive

conduct. Instead, she asserts that her state law claims are subject to equitable

tolling because she “timely assert[ed] [her] rights but in the wrong forum.”192

According to Oldham, “all claims were timely filed under North Carolina law,

which [she] had every reasonable expectation would govern.”193

These circumstances may warrant equitable tolling under the “more lenient”

federal standard; they do not, however, support equitable relief under Pennsylvania

190 Poole v. Marks, 441 F. App’x 854, 857 (3d Cir. 2011) (citing 42 Pa. C.S. § 5504(a); Aivazoglou

v. Drever Furnaces, 613 A.2d 595, 598 (Pa. Super. 1992)).

191 Id.; see also Oetting v. Heffler, Radetich & Saitta, LLP, 2017 WL 3453342, at *6 n.4 (E.D. Pa.

Aug. 11, 2017) (distinguishing Pennsylvania equitable tolling standard—prohibiting “judicial

extension of the statute of limitations . . . absent fraud or its equivalent”—and “the more lenient

federal standard,” which “permits equitable tolling of federal claims where the plaintiff asserts

her claims in a timely manner but has done so in the wrong forum,” and explaining that the

restrictive Pennsylvania standard applies “to equitable tolling of state law claims”) (internal

quotation marks and citations omitted).

192 Doc. 125 at 16 (citing Quest Diagnostics Venture, LLC v. Pennsylvania, 119 A.3d 406, 413

n.6 (Pa. Cmwlth. 2015)).

law.194 Because Oldham’s untimely filing was not attributable to fraud or its

equivalent, equitable tolling does not save her battery claim (or her other state law

claims). Count V is therefore dismissed with prejudice.

5. Negligence / Gross Negligence (Count VI)

As with Oldham’s negligent supervision and training claims (Count IV), the

negligence / gross negligence claim (Count VI) is subject to a two-year statute of

limitations,195 and is therefore timely only if the underlying tortious conduct

occurred after May 27, 2018. Although the conduct relevant to Abashidze’s and

Glon’s purported breach of duty occurred before May 2018, the allegations

specific to Penn State and Harris include actions within the two-year limitations

period. Accordingly, the claim is dismissed as to Abashidze and Glon, but under

the continuing tort doctrine, the claim as to Penn State and Harris is timely.

194 Arguing that Pennsylvania courts have held that “[a]n untimely filed claim may be permitted

under equitable tolling where . . . the plaintiff asserts rights but in the wrong forum,” Oldham

appropriately cites the Commonwealth Court of Pennsylvania’s decision in Quest Diagnostics

Venture, LLC v. Pennsylvania. 119 A.3d at 413 n.6. But this Court questions the validity of the

legal standard detailed in Quest Diagnostics. In endorsing the broader, more lenient federal

standard, the Commonwealth Court in Quest Diagnostics cites only its prior ruling in Uber v.

Slippery Rock University of Pennsylvania. Id. (citing 887 A.2d 362, 366 (Pa. Cmwlth. 2015)).

But that opinion, in turn, cites only the Third Circuit’s ruling in Oshiver—that is, the federal

case establishing the more lenient federal standard. Uber, 887 A.2d at 366 (citing Oshiver, 38

F.3d at 1387). The Commonwealth Court makes no mention of the contradictory Pennsylvania

statute, 42 Pa. C.S. § 5504(a), or the relevant Pennsylvania Superior Court rulings affirming

the Commonwealth’s more restrictive standard. See, e.g., Aivazoglou, 613 A.2d at 598. In

resolving the contradicting state court precedents, this Court will defer to the rule promulgated

by the Pennsylvania Superior Court, as recognized by the Third Circuit in Poole. 441 F. App’x

at 857.

In the Amended Complaint, Oldham predicates her negligence / gross

negligence claim on two legal duties the Defendants purportedly owed her: (1) the

duty “to keep her safe from sexual assault and harassment by Abashidze while he

was traveling and acting as a representative of Penn State to the community”; and

(2) the duty “to handle her claims [of sexual assault] properly and in good faith.”196

The first alleged duty relates solely to the December 2017 assault.197 But, as

discussed, this event occurred outside the two-year limitations period and neither

the continuing tort doctrine nor equitable tolling applies. Therefore, to the extent

this claim is based on the first duty, it is dismissed as untimely.

The second alleged duty concerns the Defendants’ obligations, after

receiving Oldham’s “credible report of the sexual assault,” to “handle her claims

properly and in good faith”—that is, as the Court understands it, to report,

investigate, and impose appropriate sanctions based on Oldham’s allegations of

sexual assault.198 It is unclear how this duty applies to Abashidze. Indeed, in the

Court’s estimation, it does not. For Glon, this duty is limited to his refusal to notify

the Penn State Athletic Department of Oldham’s allegation. But, as discussed, any

claims predicated solely on Glon’s failure to report accrued when Oldham first

informed Glon of the assault in February 2018. Accordingly, this duty cannot serve

196 Doc. 105 ¶ 166.

197 Id.

as a valid basis for a negligence claim against either Abashidze or Glon. Count VI

as to Abashidze and Glon is therefore dismissed with prejudice.

However, that is not the case for Penn State and Harris. Senior officials in

the University’s Athletic Department and Harris first learned of the alleged assault

in June 2018, after Oldham’s husband emailed Penn State’s Athletic Director.199

Harris launched the University’s investigation into Oldham’s allegations (i.e., the

conduct relevant to the second alleged duty) in August 2018 and reached a final

determination in April 2019.200 Under the continuing tort doctrine, Penn State and

Harris’s investigative efforts qualify as a “continuing practice,” and as relevant

events occurred within the limitations period, the negligence / gross negligence

claim as to these Defendants is timely.201

6. Negligent/Intentional Infliction of Emotional Distress (Count

VII)

For Count VII, Oldham broadly incorporates the allegations underlying her

prior six claims,202 and, as Pennsylvania’s statute of limitations for infliction of

emotional distress claims is also two years,203 the holding here accords with those

above. To the extent Oldham’s infliction of emotional distress claims are

predicated on Abashidze’s alleged assault and Glon’s failure to report, they are

199 Doc. 105 ¶¶ 72–74.

200 Id. ¶¶ 75–76, 120.

201 Cowell, 263 F.3d at 292.

202 Doc. 105 ¶¶ 172–74.

untimely. However, to the extent they relate to Abashidze and Glon’s alleged

retaliatory campaign and Penn State and Harris’s investigation into the alleged

assault, the claims are timely.

C. Causes of Action

Independent of their arguments based on the statutes of limitations, the

Defendants seek dismissal of Oldham’s claims on substantive grounds.204 Because

the Court dismissed Oldham’s battery claim (Count V) as untimely, it need only

consider the remaining six counts.

1. Title IX Claims (Counts I & II)

As a preliminary matter, Oldham’s Title IX claims against Harris, Glon, and

Abashidze fail because individuals cannot be held liable under Title IX. In

Fitzgerald v. Barnstable School Community, the Supreme Court of the United

States held that “Title IX reaches institutions and programs that receive federal

funds,” and has “consistently been interpreted as not authorizing suit against

school officials, teachers, and other individuals.”205 Oldham attempts to

characterize these claims as a “conspiracy to violate Title IX,” but federal courts

consistently reject such “end run[s] around Title IX’s explicit language limiting

204 See Doc. 113 at 15–40; Doc. 115 at 10–15, 17–33; Doc. 117 at 3–12.

205 555 U.S. 246, 257 (2009); see also Kobrick v. Stevens, 2014 WL 4914186, at *11 (M.D. Pa.

Sept. 30, 2014) (Mannion, J.) (“[T]he court agrees with the . . . defendants that no individual

liability to funding recipients.”206 Accordingly, Counts I and II as to Harris, Glon,

and Abashidze are dismissed with prejudice.

That leaves Penn State as the only potentially viable defendant for these

Counts. Penn State argues the Title IX claims should be dismissed because Oldham

lacks standing to sue Penn State under Title IX: she “was not a student or

employee of the University at any time, nor was she a community member or

otherwise attempting to avail herself of an ‘educational program or activity’ under

[Penn State or Harris’s] control.”207 The Court agrees.208

To bring a cause of action under Title IX, as with any statutory claim,

Oldham must have statutory standing.209 For this, she needs to show that her

“interests fall within the zone of interests protected by the law invoked.”210 Title IX

provides that “[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be subjected to

206 Doe v. School Board of Broward Cty., 604 F.3d 1248, 1266 n.12 (11th Cir. 2010); see also

Petruska v. Gannon Univ., 2008 WL 2789260, at * 8 n.9, 9 (W.D. Pa. Mar. 31, 2008) (holding

that a plaintiff’s inability to “properly prosecute a claim against Defendants under Title IX”

necessarily dooms the “conspiracy claim premised upon the same alleged unlawful conduct”);

Bennett v. Independent Blue Cross, 1993 WL 65812, at *2 (E.D. Pa. Mar. 12, 1993) (“The

United States Supreme Court has expressly stated that no cause of action exists for conspiracy

to violate Title VII.”).

207 Doc. 113 at 16 (citing Doe v. Brown Univ., 896 F.3d 127, 131–32 (1st Cir. 2018); Jennings v.

Univ. of North Carolina, 482 F.3d 686 (4th Cir. 2007)).

208 Separately, Penn State asserts that the allegations in the Amended Complaint do not establish

either deliberate indifference or retaliation / hostile work environment under Title IX. Id. at

18–23. Because the Court finds that Oldham lacks standing to bring claims under Title IX, it

need not reach these arguments.

209 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014).

discrimination under any education program or activity receiving Federal financial

assistance.”211 Although the prototypical Title IX sexual harassment and retaliation

/ hostile environment cases involve students experiencing discrimination by their

teachers or other agents of their schools,212 courts recognize that “Title IX was

drafted to cover ‘any person,’ not just any student.”213

That said, the reach of Title IX is not boundless. After surveying the relevant

case law on Title IX standing, the United States District Court for the Northern

District of Illinois in Conviser v. DePaul University held that Supreme Court

precedent “and the plain language of Title IX extend statutory standing to

(i) employees of an education program or activity . . . and (ii) those who are denied

access to an ‘education program or activity.’”214 But to establish standing based on

her inability to access an educational program or activity, a plaintiff must be “so

closely tied to a university that [she] is essentially a student of that university.”215

211 20 U.S.C. § 1681(a). This statute carves out specific exceptions, but these exceptions are not

relevant here. Id.

212 See, e.g., Doe v. Boyertown Area School District, 897 F.3d 518, 533 (3d Cir. 2018) (“To

recover on [a Title IX ‘hostile environment harassment’] claim, a plaintiff must establish

sexual harassment that is so severe, pervasive, or objectively offensive and that so undermines

and detracts from the victim’s educational experience that [he or she] is effectively denied

equal access to an institution’s resources and opportunities.”) (emphasis added); DeJohn v.

Temple Univ., 537 F.3d 301, 316 n.14 (3d Cir. 2008) (noting that “the right of a public school

student to sue a school under Title IX for ‘hostile environment’ harassment . . . applies to cases

involving harassment of a student by a teacher or other agent of a school, as well as for certain

cases of student-on-student harassment”); Jennings, 482 F.3d at 695 (“To establish a Title IX

claim on the basis of sexual harassment, a plaintiff must show that . . . she was a student at an

educational institution receiving federal funds.”).

213 Winter v. Pennsylvania State Univ., 172 F. Supp. 3d 756, 775 (M.D. Pa. 2016) (Caputo, J.).

214 532 F. Supp. 3d 581, 592 (N.D. Ill. 2021).

215 Doe v. University of Kentucky, 971 F.3d 553, 559 n.4 (6th Cir. 2020) (holding that “there

Indeed, plaintiffs who “are not the direct beneficiaries of programs covered by

Title IX”216 or who are “deprived . . . of [only] an economic benefit” lack statutory

standing to sue under Title IX.217

Here, Oldham is not and never has been a student at Penn State. She is not

and never has been a Penn State employee. Instead, Oldham is a private fencing

instructor who operates a fencing club and training facility in Durham, North

Carolina.218 Oldham has not identified, and the Court is not aware of, any case in

which a court held that a similarly situated private instructor with no affiliation to a

university defendant possessed statutory standing to sue under Title IX.

Nevertheless, Oldham argues that she “has Title IX standing because she

seeks, and is being denied, access to Penn State programs and opportunities, i.e.,

fencing workshops, competitions, recruitment opportunities, etc. held at Penn

State.”219 But Oldham has not alleged, and the Amended Complaint does not show,

that Oldham was a “direct beneficiar[y] of programs covered by Title IX”220—that

is, she is not an athlete seeking to attend the Penn State workshops, participate in

in University housing and paid for a University dining plan and other University student fees

“was denied the benefits of an ‘education program or activity’ furnished by the University”).

216 Young v. Pleasant Valley School District, 2008 WL 417739, at *6 (M.D. Pa. Feb. 13, 2008)

(Munley, J.); see also Dipippa v. Union School District, 819 F. Supp. 2d 435, 446 (W.D. Pa.

2011) (“Generally speaking, parents of a student whose rights were violated do not have

standing to assert personal claims under Title IX, but do have standing to assert claims on the

student’s behalf.”).

217 Conviser, 532 F. Supp. 3d at 593.

218 Doc. 105 ¶ 11.

219 Doc. 125 at 18 (citing Doc. 105 ¶¶ 104–05, 108–11).

Penn State fencing competitions, or compete for collegiate fencing recruitment

opportunities. Instead, the intended beneficiaries allegedly affected by Oldham

“reduc[ing] her attendance at regional- and national-level fencing tournaments in

the United States, international tournaments, games and events, workshops, and

collegiate recruitment events” are Oldham’s clients (i.e., the “recruitable (college-

bound) athletes” she describes as “her students”).221 The only direct harm Oldham

alleges she suffered is financial:

It is [Oldham’s] belief that Penn State, and other NCAA

fencing programs headed by friends of Glon and

Abashidze, would not recruit or offer fencing

scholarships to any of her students, thus reducing the

appeal of her fencing academy. As a result, she has lost

recruitable (college-bound) athletes to a neighboring

club.222

But such economic harms—suffered by someone who is not the direct beneficiary

of a program covered by Title IX—do not establish Title IX standing.223

Alternately, Oldham asserts that she has “vicarious standing” to sue on

behalf of “her college-bound fencing students who have been denied recruitment

and scholarship opportunities, at Penn State and elsewhere, because of the

retaliation against her.”224 But, again, Oldham cites no case law supporting her

position, and the Court is not aware of any cases recognizing vicarious standing in

221 Doc. 105 ¶¶ 107–08.

222 Id. ¶ 107.

223 See Conviser, 532 F. Supp. 3d at 593; Young, 2008 WL 417739 at *6.

the Title IX context. Indeed, as discussed, the case law on Title IX standing

establishes that efforts to sue under Title IX indirectly, on behalf of others are

generally impermissible.225 The Court sees no reason to deviate from this general

rule.

For these reasons, the Court finds that Oldham lacks standing to sue Penn

State under Title IX. Counts I and II of the Amended Complaint are therefore

dismissed with prejudice.

2. Defamation (Count III)

As previewed, Oldham’s defamation claim is deeply flawed. The Defendants

move for dismissal, arguing that the alleged defamatory statement made during the

SafeSport arbitration is protected by privilege, and the other unspecified

defamatory statements—made on “unknown dates” at unspecified locations to

unidentified “fencing colleagues”—lack the particularity required to sustain a

claim for defamation.226 The Court agrees.

Under Pennsylvania law, a claim for defamation includes the following four

elements: (1) “[t]he defamatory character of the communication”; (2) “[i]ts

publication by the defendant”; (3) “[i]ts application to the plaintiff”; (4) “[t]he

225 See, e.g., Young, 2008 WL 417739, at *6; Dawn L. v. Greater Johnstown School District, 586

F. Supp. 2d 332, 376 (W.D. Pa. 2008) (“Claims for retaliation are . . . only available to those

who have actually engaged in a protected activity themselves; Title IX does not extend this

protection to the actor’s friends and family.”) (citing Fogleman v. Mercy Hospital, Inc., 283

F.3d 561, 567 n.4, 568–70 (3d Cir. 2002)).

understanding by the recipient of its defamatory meaning”; and (5) “[t]he

understanding by the recipient of it as intended to be applied to the plaintiff.”227

That said, the “publisher of defamatory material is not liable if the publication was

made subject to a privilege and the privilege was not abused.”228 Relevant here,

“[p]ursuant to the judicial privilege, a person is entitled to absolute immunity for

communications which are issued in the regular course of judicial proceedings and

which are pertinent and material to the redress or relief sought.”229

First, the Defendants argue that arbitration proceedings before SafeSport—a

Congressionally created and federally funded entity “empowered to adjudicate

allegations of sexual assault in sport through a binding arbitration process”230—

qualify as “quasi-judicial proceedings,” and, as such, all statements made during

these proceedings are accorded an absolute privilege.231 Oldham dismisses these

arguments as “immaterial,” explaining that she “alleges that Glon called [her] ‘a

liar’ at the SafeSport adjudication of Abashidze, not as the basis of liability for the

tort, but as concrete evidence of what he said more broadly in the fencing

community.”232 The Court interprets Oldham’s response as a concession that

227 Graboff, 744 F.3d at 135; see also 42 Pa. C.S. § 8343(a).

228 Bennett v. Itochu Int’l, Inc., 682 F. Supp. 2d 469, 476 (E.D. Pa. 2010) (citing Chicarella v.

Passant, 494 A.2d 1109, 1112 (Pa. Super. 1985)).

229 Bochetto v. Gibson, 860 A.2d 67, 71 (Pa. 2004) (internal quotation marks, citation, and

emphasis omitted).

230 Doc. 113 at 26; see also 36 U.S.C. § 220541(c).

231 Doc. 113 at 25–27.

Glon’s testimony during the SafeSport arbitration proceeding are protected by

privilege, and, as such, cannot serve as a basis for her defamation claim.

Second, the Defendants assert that Oldham’s allegations that Glon and

Abashidze made other defamatory statements at “unknown dates” to unidentified

members of the “fencing community” lack the specificity required to sustain a

claim for defamation.233 Under Federal Rule of Civil Procedure 8, “to bring a claim

for defamation in federal court, only notice pleading is required to survive a

motion to dismiss.”234 Put differently, “the plaintiff does not have to plead the

precise defamatory statement as long as the count provides sufficient notice to the

defendant.”235

Unfortunately, judges in this district disagree about what facts are required

to “provide sufficient notice.”236 But as explained in Cauley v. Geisinger Clinic, I

233 Doc. 113 at 25–27; Doc. 133 at 17; Doc. 134 at 20–21.

234 Peoples State Bank v. Wellsburg Truck Auto Sales, Inc., 2010 WL 4922877, at *3 (M.D. Pa.

Nov. 29, 2010) (Caputo, J.) (citing Fed. R. Civ. P. 8).

235 Roskos v. Sugarloaf Twp., 295 F. Supp. 2d 480, 492 (M.D. Pa. 2003) (Conaboy, J.).

236 2022 WL 265947, at *6–7 (M.D. Pa. Jan. 27, 2022) (comparing Peoples State Bank, 2010 WL

4922877, at *3 (holding that for defamation claims, notice pleading requires the plaintiff to

allege “to whom the [allegedly defamatory] words were spoken, where they were spoken, [and]

when they were spoken”); Fiedler v. Shady Grove Reproductive Science Center, P.C., 2014

WL 3535558, at *4–5 (M.D. Pa. July 16, 2014) (Connor, J.) (dismissing defamation claim

where plaintiff “fails to allege where or how the statement was made” and “when the statement

was made”); Klatch-Maynard v. Sugarloaf Twp., 2012 WL 3597185, at *3 (M.D. Pa. Aug. 20,

2012) (Kane, J.) (dismissing defamation claim when plaintiff failed to satisfy “obligation to

put forth evidence that a defamatory statement was made,” which “includes putting forth

evidence that a defamatory statement was made on a particular date”), with Reager v. Williams,

2009 WL 3182053, at *4–5 (M.D. Pa. Sept. 25, 2009) (Munley, J.) (permitting a defamation

claim to proceed past the motion to dismiss phase despite the complaint failing to detail “what

the allegedly defamatory statements were and who made the statements and to whom they were

made” because allegations that the defendants “attempted to create the impression that plaintiff

stand with the majority of my colleagues in requiring a plaintiff advancing a

defamation claim to allege, at a minimum, who made the allegedly defamatory

statement, to whom the statement was made, where it was made, and when it was

made.237 The federal pleading standards may be liberal, but they require more than

bare allegations that “fail[] to identify with any degree of specificity the substance

and circumstances of the representations at issue.”238

In her Amended Complaint, Oldham alleges that Abashidze and Glon shared

“falsehoods” with their “friends and supporters in the fencing community and

those who were doubters of the burgeoning international #metoo movement,”239

and asserts that she “heard colleagues minimize and dismiss the assault because

Abashidze did not ‘present an immediate threat to minors,’ or Abashidze merely

‘brushed someone’s arm on a plane.’”240 But Oldham does not detail what

Abashidze and Glon purportedly said, when or where they made these statements,

or who precisely they made these statements to. Instead, Oldham asks the Court to

simply accept that Glon and Abashidze made defamatory statements as “the only

reasonable inference” one could draw based on her alleged ostracization within the

individual conducting business in a dirty way that included victimizing young women” were

“sufficient to place the defendants on notice of the defamation claim and sufficiently precise

for the defendants to respond to the them”)).

237 Id.

238 Fiedler, 2014 WL 3535558, at *5.

239 Doc. 105 ¶ 78.

fencing community.241 However reasonable these inferences may be, inferences

alone do not state a claim for defamation.

Further, Oldham’s remaining defenses of her defamation pleadings flatly

contradict one another. Oldham first argues that “in these circumstances, further

investigation and discovery are required to develop the details of precisely what

Glon and Abashidze have said, and to whom.”242 But she then changes course,

arguing that she does, in fact, possess the requisite details about Glon’s and

Abashidze’s purportedly defamatory statements, but she intentionally omitted this

information as an act of discretion: “[Oldham] is aware of many specific

individuals [to whom Glon and/or Abashidze allegedly made defamatory

statements about her] but has not named them, discretion being the better part of

valor.”243

The Court does not question Oldham’s intentions here, but her legal

judgment is suspect. Because the Amended Complaint does not identify with any

degree of specificity the circumstances of the allegedly defamatory statements at

issue—i.e., when, where, and to whom the statements were made—Oldham’s

defamation claim fails to meet the pleading requirements of the Federal Rules of

Civil Procedure.

241 Doc. 125 at 14; see also id. at 28 (“If Glon would falsely accuse Ms. Oldham of lying when he

was under oath [at the SafeSport adjudication], it stands to reason that he had no inhibitions

about repeating that falsehood elsewhere.”).

242 Doc. 126 at 16.

3. Failure to Train/Supervise (Count IV)

For Count IV of the Amended Complaint, Oldham asserts a claim for

negligent failure to train and/or supervise its employees on sexual misconduct

claims against three of the Defendants: Penn State, Harris, and Glon. Because

Pennsylvania courts have promulgated a specific standard for negligent supervision

claims, but not for negligent training claims, the Court addresses each claim

independently.244

a. Negligent Supervision

To sustain a claim for negligent supervision under Pennsylvania law, a

plaintiff must show that her loss resulted from “(1) a failure to exercise ordinary

care to prevent an intentional harm by an employee acting outside the scope of his

employment, (2) that is committed on the employer’s premises, (3) when the

244 In their briefing on the motions to dismiss, the parties treat this Count as only a duty to

supervise; they do not confront the distinct issues relevant to negligence claims based on a

failure to train theory. See Doc. 113 at 29–31; Doc. 124 at 30–31; Doc. 125 at 33–35. For

Oldham, this is perfectly understandable, as courts in North Carolina impose a single standard

for tort liability based on an employer’s negligent training, supervision, and/or retention of an

employee, see Taft v. Brinley’s Grading Services, Inc., 738 S.E.2d 741, 750 (N.C. App. 2013)

(articulating a single legal standard for a “claim for negligent hiring, supervision and

retention”), and she asks this Court to apply North Carolina law. But Pennsylvania law governs

this Count, and Pennsylvania courts impose distinct legal standards for negligent supervision

and negligent training claims. Compare Belmont v. MB Investment Partners, Inc., 708 F.3d

470, 487–88 (3d Cir. 2013) (recognizing distinct standard under Pennsylvania law for

negligent supervision claims), with Kaminski v. Mydatt Services Inc., 2012 WL 2089741, at *4

(W.D. Pa. June 8, 2012) (“Corporate Defendants cite no cases, and this Court has not found

any cases, which promulgate a standard for negligent training different that the normal

negligence standard.”). Because the Amended Complaint includes under this Count specific

allegations relevant to Glon’s and Harris’s purported failure to train—i.e., “Glon and/or Harris

neglected their duty and failed to provide adequate annual sexual misconduct policy and Title

IX training to all members of the Fencing Team’s coaching staff,” Doc. 105 ¶ 153—the Court

employer knows or has reason to know of the necessity and ability to control the

employees.”245 Additionally, “[n]egligent supervision requires the four elements of

common law negligence, i.e., duty, breach, causation, and damages.”246

Penn State, Harris, and Glon argue that Oldham’s negligent supervision

claim fails for three reasons: (1) they did not owe a duty to Oldham; (2) Glon’s and

Harris’s conduct falls outside the claim because they were acting within the scope

of their employment; and (3) the only alleged “intentional harm” that could have

resulted from allegedly negligent supervision—that is, the alleged assault by

Abashidze—did not occur on Penn State property.247 The Court addresses each

argument in turn.

First, Penn State, Harris, and Glon assert that neither the University nor the

individual Defendants owed any legal duty to Oldham because she was not a Penn

State student or employee, or a participant in a Penn State program, and none of

them had a “special relationship with Oldham sufficient to impose a legal duty of

care.”248 But these Defendants misconstrue the nature of the duty at issue in

negligent supervision claims. As the Superior Court of Pennsylvania explained in

Brezenski v. World Truck Transfer, Inc., although there is generally “no duty to

control the conduct of a third person to prevent others from harm,” a duty arises

245 Belmont, 708 F.3d at 487–88 (citing Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 420 (Pa.

1968); Heller v. Patwil Homes, Inc., 713 A.2d 105, 107–08 (Pa. Super. 1998)).

246 Id. (citing Brezenski v. Word Truck Transfer, Inc., 755 A.2d 36, 42 (Pa. Super. 2000)).

247 Doc. 113 at 30–31.

when “there is a special relationship between the actor and the third person or

between the actor and the injured party.”249 For negligent supervision, the “special

relationship” at issue is not between the defendants and the injured party (i.e.,

Oldham), but between the defendants and the third person who caused the injury

(here, Abashidze and, for Penn State, Glon or Harris).250 Accordingly, the issue

here is not whether these Defendants had a “special relationship” with Oldham

sufficient to impose a legal duty, but whether they had a special relationship with

their employees (or, in the case of Harris and Glon, the Penn State employees

under their supervision) such that they can be held liable for foreseeable harm the

employees caused. They did, and, therefore, they can.

Second, these Defendants note that Oldham “expressly alleges that Glon and

Harris were acting ‘within the course and scope of their respective employment at

all relevant times.’”251 Because “[a] claim for negligent supervision covers only the

wrongful acts of employees which are outside the scope of their employment or not

in furtherance of the principal’s business,”252 Penn State argues that “the plain

249 755 A.2d at 40.

250 Id. at 40–41 (noting that Section 317 of the Restatement (Second) of Torts, which “sets for the

duties of a master to control the conduct of a servant,” establishes a legal duty “where a special

relationship exists between the actor (defendant) and the third person (wrongdoer)”); see also

Belmont, 708 F.3d at 488 (explaining that negligent supervision claims are “predicated on two

duties of an employer: the duty to reasonably monitor and control the activities of an employee,

and the duty to abstain from hiring an employee and placing that employee in a situation where

the employee will harm a third party”).

251 Doc. 113 at 30 (citing Doc. 105 ¶ 151).

252 Maloney v. Mt. Airy #1, LLC, 2020 WL 1082598, at *4 (M.D. Pa. Mar. 4, 2020) (Mannion, J.);

see also Gilmour v. Bohmueller (In re American Investors Life Insurance Co. Annuity

language of the [Amended] Complaint forecloses this claim.”253 On this, the

Defendants are correct, but only in part. As Oldham does not allege that Harris’s

and Glon’s injurious conduct occurred outside the scope of their employment—

indeed, she alleges the opposite—she cannot sustain a negligent supervision claim

against Penn State based on the actions of these two employees. However, that

does not foreclose a claim of negligent supervision against Penn State, Harris, and

Glon based on the actions of a separate employee—namely, Abashidze.

Third, these Defendants argue that “the only pled ‘intentional harm’ that

could have resulted from purportedly negligent training or supervision did not

occur on the University’s premises”—a necessary element for a negligent

supervision claim.254 Although these Defendants ignore other intentional harms

that Oldham connects to their failure to supervise—namely, Abashidze and Glon’s

alleged retaliatory defamation campaign—their broader point is correct: Oldham

does not allege that Abashidze committed an intentional harm on Penn State

property.

To sustain a claim for negligent supervision under Pennsylvania law, a

plaintiff must allege “an intentional harm by an employee” that was “committed on

2007) (dismissing negligent supervision claim at pleading stage because “[n]owhere in the

complaints do the plaintiffs allege that the [defendants’ employees] were acting outside the

scope of their agency”).

253 Doc. 113 at 30.

the employer’s premises.”255 As discussed in the prior section on the statute of

limitations, the alleged assault by Abashidze cannot serve as the predicate for this

claim as it does not implicate either the continuing tort doctrine or equitable

estoppel. But even if it did, the alleged assault by Abashidze occurred “on a

domestic flight somewhere over the Great Plains region of the United States”—not

on Penn State’s premises.256 Additionally, the alleged retaliatory defamation

campaign likewise lacks any locational nexus to Penn State: the Amended

Complaint contains no allegations that Abashidze made any defamatory statements

while on Penn State’s campus or other University property.

Oldham asserts that based on her allegations, it is not clear “that Glon and

Abashidze never, for example, defamed Oldham in conversation from their offices

[or] on [Penn State] phones.”257 But that won’t do. Oldham cannot salvage her

claim by noting that her allegations don’t prove that the alleged, unspecified

defamatory statements were made off Penn State property. As the plaintiff, she

bears the burden of establishing that these injurious acts did, in fact, occur on Penn

State’s premises. She has failed to do so, and, as such, she has not adequately

pleaded a claim for negligent supervision.

255 Belmont, 708 F.3d at 487–88.

256 Doc. 105 ¶ 1.

b. Negligent Training

Pennsylvania courts have held that employers may be held liable under a

theory of negligence for failing to adequately train their employees.258 However, it

appears that neither the Supreme Court of Pennsylvania nor its subsidiary courts

have outlined the contours of an employer’s duty to train its employees or the

pleading standards for alleging breach.259 Accordingly, when confronted with

negligent training claims, federal courts have done their level best to divine how

Pennsylvania courts would rule on this issue.

Recognizing that Pennsylvania courts have not promulgated a specific

standard for negligent training, the United States District Court for the Western

District of Pennsylvania in Kaminski v. Mydatt Services Inc. applied “the normal

negligence standard.”260 Specifically, the court held that “to prove a prima facie

case for negligence [on a failure to train theory], plaintiffs must show that

corporate defendants (1) had a duty to train their employees; (2) breached that

duty; and (3) the breach of that duty caused the plaintiffs’ harm.”261

258 See, e.g., Shiflett v. Lehigh Valley Health Network, Inc., 217 A.3d 225, 229, 235 (Pa. 2019)

(affirming jury verdict against hospital for “corporate negligence related to the Hospital’s

alleged failure to train [a] nurse”); Morder v. Professional Aerials Inc., 2006 WL 5820609 (Pa.

Com. Pl.) (affirming jury verdict against employer for its negligent failure to train its

employee).

259 See Kaminski, 2012 WL 2089741, at *4 (“Corporate Defendants cite no cases, and this Court

has not found any cases, which promulgate a standard for negligent training different that the

normal negligence standard.”).

260 2012 WL 2089741, at *4.

For the first prong, “a plaintiff must assert that the defendant employer had a

duty to train its employees on a particular issue.”262 Citing the Pennsylvania

Superior Court’s ruling in Brezenski, the United States District Court for the

Eastern District of Pennsylvania held in Bracke v. Eiteone Landscape Supply, LLC

that “[a]n employer has a duty to train its employees only on those issues that

could themselves give rise to a cause of action for negligence.”263

Here, Oldham alleges that Penn State, Harris, and Glon failed to provide the

University employees under their supervision—in particular, the “members of the

Fencing Team’s coaching staff”—with “adequate annual sexual misconduct policy

and Title IX training.”264 As discussed, Oldham points to Penn State’s “AD85

Sexual and/or Gender-Based Misconduct and Harassment” policy as well as its

“sexual misconduct policies,” which prohibit sexual harassment as well as

“retaliation” against individuals involved in “reporting, investigat[ing], or

resol[ving]” alleged sexual misconduct violations. 265 These policies also require

“Responsible Employees” to “report incidents of possible Prohibited Conduct to

the Title IX Coordinator.”266

262 Bracke v. Eiteone Landscape Supply, LLC, 2022 WL 1128951, at *2 (E.D. Pa. Apr. 15, 2022).

263 Id. (citing Brezenski, 755 A.2d at 42)).

264 Doc. 105 ¶ 153.

265 Id. ¶¶ 33–34, 37.

Because neither the alleged sexual assault nor Glon’s failure to report can

serve as viable predicates for Oldham’s failure to train claim,267 the only alleged

conduct relevant here is Abashidze and Glon’s retaliatory defamation campaign.

But Oldham does not identify, and the Court is not aware of, any cases establishing

under Pennsylvania law a broad “duty not to retaliate” that extends to individuals

with whom the defendants have no employment relationship.268

Moreover, even if Penn State, Harris, and Glon had a duty to administer

“adequate annual sexual misconduct policy and Title IX training,”269 Oldham has

not sufficiently pleaded that they breached this duty. For this second prong, a

plaintiff must allege in “specific terms” how the defendant breached its duty to

properly train individual employees; “mere conclusory statements” that amount to

nothing more than a recitation of the elements of the claim are insufficient.270

The Amended Complaint contains only one allegation relevant to the

training at issue: “Glon and/or Harris neglected their duty and failed to provide

adequate annual sexual misconduct policy and Title IX training to all members of

the Fencing Team’s coaching staff.”271 Oldham provides no information on what

267 See supra Section III.B.3 (Statute of Limitations: Failure to Train/Supervise (Count IV)).

268 To the extent courts applying Pennsylvania law have recognized a common law “duty not to

retaliate,” it appears they have done so only in the employer-employee context. See, e.g., In re

Hyman Companies, 497 B.R. 465, 478 (Bankr. E.D. 2013) (recognizing a “duty not

to retaliate against an employee [that] arises independently from the employment contract”).

269 Doc. 105 ¶ 153.

270 Kaminski, 2012 WL 2089741, at *4–5.

trainings occurred, who did (or did not) receive them, and why they were

purportedly deficient. Absent some specific facts showing how Penn State, Harris,

and Glon breached their duty to properly train their employees and/or staff,

Oldham cannot sustain a claim for negligent training.

Because Oldham has not adequately pleaded a claim for negligent

supervision or negligent training, Count IV is dismissed. For her negligent

supervision claim, the Court will grant Oldham an opportunity to plead over and

remedy the identified deficiencies in the Amended Complaint. However, because

Penn State, Harris, and Glon were not subject to a duty to train their employees not

to retaliate against independent individuals unaffiliated with Penn State or its

fencing program, the negligent training claim fails as a matter of law; to the extent

Count IV is predicated on this theory of liability, it is dismissed with prejudice.

4. Negligence / Gross Negligence (Count VI)

For Count VI, Oldham asserts a claim for negligence / gross negligence

against all Defendants based on an alleged breach of their duties to (1) “keep

[Oldham] safe from sexual assault and harassment by Abashidze while he was

traveling and acting as a representative of Penn State to the community,” and

(2) “handle her claims [of the sexual assault] properly and in good faith.”272 But

this claim has been narrowed considerably due to the statute of limitations. As

discussed, neither the alleged assault nor Glon’s failure to report it constitute valid,

timely predicates for Oldham’s negligence-based claims, and, as such, Count VI as

to Abashidze and Glon has been dismissed with prejudice. That leaves only Penn

State and Harris as viable defendants. Additionally, the scope of this claim is

limited to Oldham’s allegations that the University and Harris breached their duty

handle her claims of sexual assault in good faith.

Penn State and Harris ask the Court to dismiss Oldham’s negligence claims

because they did not “owe [Oldham] a duty with respect to [the] investigation or

handling of her Title IX allegations.”273 These Defendants argue that because

“Title IX’s protections do not extend to Oldham” and the University and Harris

“did not assume a duty to Oldham under Title IX or otherwise” by simply

“investigat[ing] her allegations concerning Abashidze,” they do not have any

“special relationship” with Oldham.274

Oldham responds that Penn State and Harris, after “learn[ing] their

[assistant] fencing coach sexually assaulted Oldham while traveling on [the

University’s] behalf,” assumed a duty “to mitigate the harm” done to her.275

According to Oldham, it is “commonsensical” that “society expects one to take

reasonable measures to prevent [foreseeable harm].”276

273 Doc. 113 at 33.

274 Id. at 34 (citing Borkowski v. Baltimore County, Md., 492 F. Supp. 3d 454, 488 (D. Md. 2020)).

275 Doc. 125 at 30–33; see also Doc. 124 at 27–28 (same).

But Pennsylvania courts do not impose on all individuals and institutions a

legal duty to prevent or mitigate any harm they can reasonably foresee. Instead, as

the Penn State and Harris assert, a defendant’s duty to prevent or mitigate harm

exists only when it maintains a “special relationship” with the injured party.277

Here, Oldham fails to allege that she, Penn State, and Harris maintained this type

of “special relationship.” As noted, Oldham is a private fencing instructor with no

direct connection to Penn State. She is not, and never has been, a student or

employee of the University, and she was not the direct beneficiary of any of the

Penn State fencing competitions, workshops, or programs relevant here. The mere

fact that Penn State investigated Oldham’s allegations of assault does not

meaningfully alter this dynamic: the investigation alone does not create a legal

duty under Title IX,278 and Oldham offers no argument for why it should be any

different under the common law. To the extent Oldham asserts that this duty arises

out of Penn State policies, the Defendants correctly explain that such policies do

not create a common law duty capable of sustaining a negligence action.279

277 Doc. 113 at 33–34; see also Doc. 115 at 25–26 (citing Brezenski, 755 A.2d at 40 (holding that

an individual “has no duty to control the conduct of a third party to protect another from harm,

except where a defendant stands in some special relationship . . . with the intended victim of

the conduct, which gives the intended victim a right to protection”)).

278 See Borkowski, 492 F. Supp. 3d at 488 (“The University Defendants correctly argue that, ‘[t]he

mere fact that [the university] investigated the three respondents to determine if their actions

violated [the university’s policy] does not mean the [university] owed [plaintiffs] duties under

Title IX.”).

279 See Doc. 115 at 24–25 (citing Humphries v. Pennsylvania State Univ., 2020 WL 5878409, at*8

(M.D. Pa. Oct. 2, 2020) (rejecting former student athlete’s claim that Penn State and its football

Grasping for some basis for the legal duty she asserts, Oldham points only to

the Pennsylvania Superior Court’s ruling in Commonwealth v. Spanier.280 There,

the court rejected an argument by Defendant Graham Spanier, the former president

of Penn State, that “he owed no duty of care” to victims of former Penn State

assistant football coach Jerry Sandusky.281 The court held that once Spanier

became “aware of specific allegations of sexual abuse,” he owed a duty to the

abused victims because he occupied a position of authority, “oversaw his

institution’s response,” and “had sufficient information and authority to take

action.”282

But Penn State and Harris correctly respond that Spanier and the instant case

are inapposite.283 Specifically, Penn State explains that Spanier’s duty to

Sandusky’s victims stemmed, in part, from the relationship between the University

and the victims—“they were Sandusky’s unauthorized invitees” on Penn State

property.284 Conversely, here, no such relationship exists: “Oldham was not an

invitee. She was not on University property. She was not at a University event. She

was on an airplane over the Midwest at the time of the assault.”285 Further, Penn

policies, explaining that “previous courts have found that simply enacting policies does not

create new duties for entities.”).

280 192 A.3d 141 (Pa. Super. 2018).

281 Id. at 150–54.

282 Id.

283 Doc. 133 at 24.

284 Id. at 23.

State and Harris note that “Spanier was decided (1) on the basis that the defendant

owed a duty to a minor child (2) under a statute concerning endangering the

welfare of children (3) and in the context of an assessment of ‘what particular

conduct is rendered criminal’ under the statute.”286 None of these considerations

exist here.

Moreover, even if Penn State and Harris owed Oldham a duty to investigate

her claim in good faith, she has not properly alleged that either Defendant breached

this duty. As Penn State and Harris explain, the Amended Complaint establishes

that “in response to Oldham’s complaints, the University conducted an

investigation that ultimately resulted in Abashidze’s termination.”287 Oldham

expresses frustration with the scope of Penn State’s investigation and the substance

and timing of the University’s conclusions.288 But dissatisfaction with a school’s

investigation does not establish a Title IX violation,289 and Oldham again offers no

286 Id. at 23–24 (internal citations omitted).

287 Doc. 113 at 18 (citing Doc. 105 ¶¶ 76, 104).

288 See Doc. 125 at 20–21 (“Penn State and Harris were repeatedly informed of the ongoing harm

from Glon and Abashidze[]” but that “they refused to investigate or discipline Glon, or

otherwise to take any measures to halt the discriminatory conduct.”).

289 See D.V. by and through B.V. v. Pennsauken School District, 247 F. Supp. 3d 464, 477 (D.N.J.

2017) (holding that when a school “attempts to investigate” an allegation of harassment, the

plaintiff cannot establish “a Title IX violation occurred” simply by asserting that he or she was

“not satisfied with the . . . investigation”); Karasek v. Regents of Univ. of California, 956 F.3d

1093, 1106–08 (9th Cir. 2020) (dismissing plaintiff’s Title IX deliberate indifference claim—

despite the university defendant’s thirteen-month delay in resolving complaint of assault and

failure to follow its policies and communicate with the plaintiff—because the school

“investigated [the plaintiff’s] complaint, met with her assailant shortly after she submitted her

argument for why such dissatisfaction equates to a breach of a common law

equivalent.

Accordingly, the Court finds that neither Penn State nor Harris owed

Oldham a legal duty to “handle her claims [of sexual assault] properly and in good

faith,”290 and even if they did, Oldham has not adequately alleged that the

University or Harris breached this duty. Count VI is therefore dismissed with

prejudice.

5. Negligent/Intentional Infliction of Emotional Distress (Count

VII)

For Count VII, Oldham pleads claims for the negligent infliction of

emotional distress (“NIED”) and the intentional infliction of emotional distress

(“IIED”).291 But these claims have also been narrowed by the statute of limitations

and are now viable only regarding the two following factual predicates:

(1) Abashidze and Glon’s alleged retaliatory campaign; and (2) Penn State and

Harris’s investigation into the alleged assault. To that end, neither predicate

supports a claim for the infliction of emotional distress—negligent or intentional.

First, Pennsylvania law recognizes a claim for NIED in the following

scenarios: “(1) situations where the defendant had a contractual or fiduciary duty

toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the

plaintiff was in a zone of danger, thereby reasonably experiencing a fear of

290 Doc. 105 ¶ 166.

impending physical injury; or (4) the plaintiff observed a tortious injury to a close

relative.”292 A plaintiff seeking recovery for NIED must also establish the elements

of a negligence claim.293

As discussed, Oldham has not stated a viable claim for negligence against

any of the Defendants: the claim as to Abashidze and Glon was untimely, and

neither Penn State nor Harris owed Oldham a duty to investigate her claim of

sexual assault “properly and in good faith.”294 Further, even if Oldham’s general

negligence claim as to Abashidze and Glon was timely, it would nevertheless fail

for the same reason this Court dismissed Oldham’s negligent training claim as to

Glon—that is, Pennsylvania does not recognize a broad “duty not to retaliate” that

would attach to either Abashidze or Glon in this circumstance.295 Because

establishing the elements of a negligence claim is a necessary predicate,296 Oldham

fails to state a claim for NIED.

Second, under Pennsylvania tort law, a plaintiff alleging IIED must show the

following: (1) the conduct was extreme and outrageous; (2) it was intentional or

reckless; (3) it caused emotional distress; and (4) that distress was severe.297 The

plaintiff must show that the conduct at issue was “so outrageous in character and

292 Toney v. Chester County Hospital, 961 A.2d 192, 197–98 (Pa. Super. 2008), aff’d, 36 A.3d 83

(Pa. 2011).

293 Id. at 198.

294 Doc. 105 ¶ 166.

295 See supra Section III.C.3.b.

296 Toney, 961 A.2d at 197–98.

so extreme in degree as to go beyond all possible grounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized society.”298 Finally, the

plaintiff must show that he suffered “some type of resulting physical harm due to

the defendant’s outrageous conduct.”299

Oldham’s IIED claim misses the mark on several fronts. As a preliminary

matter, Oldham has not alleged that either viable factual predicate—i.e., the

alleged retaliatory campaign or the investigation into the assault—caused her to

suffer “physical harm.”300 Oldham alleges that this conduct caused her to suffer

“severe mental distress and emotional injuries,” including stress, anxiety, “loss of

sleep,” an “inability to perform work tasks,” and “feelings of depression, despair,

and humiliation” as well as “intense grief at the loss of friendships, and feelings of

betrayal by her former friends, professional peers, and her primary coach-

mentor.”301 Regardless of how genuine and consequential these mental and

emotional harms may be, they are not connected to any alleged physical injury.302

More importantly, neither the alleged retaliatory campaign nor the

investigation into Oldham’s claims constitute the type of “extreme and outrageous”

298 Miller v. Comcast, 724 F. App’x. 181, 182 (3d Cir. 2018) (quoting Hoy, 720 A.2d at 754).

299 Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (quotation marks omitted).

300 Id.

301 Doc. 105 ¶ 101.

302 See, e.g., Borregine v. Messiah College, 2013 WL 6055214, at *4 (M.D. Pa. Nov. 15, 2013)

(Kane, J.) (dismissing IIED claim because plaintiff’s “sole averment . . . that she ‘has suffered

severe emotional distress for which she is in on-going treatment’ . . . is ambiguous, and no

conduct actionable as an IIED claim. According to Oldham, Abashidze and Glon

spread falsehoods about Oldham and refuted her claims of sexual assault, calling

her a “liar”303 and asserting that Abashidze merely “brushed someone’s arm on a

plane” and therefore “did not present an immediate threat to minors.”304 Accepted

as true, these actions qualify as vindictive; however, “they do not reach the extreme

level of outrageous required for an [IIED] cause of action.”305 Similarly, the

allegations regarding Penn State and Harris’s Title IX investigation into Oldham’s

complaint—specifically, the findings that Abashidze had not violated any Penn

State policy,306 the absence of any discussion of Glon’s conduct,307 and the delayed

final determination308—may well present some legal and public relations

complications for the University and Harris; they are not, however, “so

303 Doc. 105 ¶ 119.

304 Please note: Oldham does not attribute these claims to Abashidze and Glon directly, but instead

attributes these statements to “friends of Glon and Abashidze, who have accepted their false

version of these events.” Id. ¶ 108.

305 Thompson v. AT&T Corp., 371 F. Supp. 2d 661, 684 (E.D. Pa. 2005) (holding that defendants’

actions—which included “profanity directed toward the Plaintiff and the accompanying verbal

abuse by supervisor,” “threatening Plaintiff to ‘shape up or ship out,’” “teasing the Plaintiff

about his physical appearance, not providing documentation for disability insurance to the

Plaintiff, providing false information to the disability insurance carrier indicating the Plaintiff

did not enroll in the program when in fact he did, and . . . falling the Plaintiff ‘crazy’ and

‘nuts’”—were “certainly rude, callous and insensitive in a work atmosphere,” but did not

constitute extreme and outrageous conduct as required to state an IIED claim); see also

Restatement (Second) of Torts § 46 comment (d) illustration 4 (1965) (“A makes a telephone

call but is unable to get his number. In the course of an altercation with the telephone operator,

A calls her a God damned woman, a God damned liar, and says that if he were there he would

break her God damned neck. B suffers severe emotional distress, broods over the incident, is

unable to sleep, and is made ill. A’s conduct, although insulting, is not so outrageous or extreme

as to make A liable to B.”).

306 Doc. 105 ¶¶ 82, 86.

307 Id. ¶¶ 83, 88.

outrageous,” so “atrocious,” so “utterly intolerable” as to support a claim for

IIED.309

Therefore, the Court finds that as a matter of law, the facts alleged in the

Amended Complaint fail establish that the Defendants owed her the requisite legal

duty to sustain an NIED claim, and likewise do not demonstrate conduct

adequately extreme and outrageous to support a claim for IIED. As such, Count

VII of the Amended Complaint is dismissed with prejudice.

IV. CONCLUSION

We have seen this show before: a long-tenured, highly regarded Penn State

athletic coach covering up alleged sexual abuse by an assistant coach. Some

lessons should only need to be learned once. That said, the particularities of the

present case make it meaningfully different than its tragic, shameful precedent

involving Jerry Sandusky. Oldham, a private fencing instructor with no direct

connection to Penn State or its fencing program, was allegedly assaulted on a

commercial flight from Oregon to Chicago following a national fencing

tournament. Because she failed to timely raise certain allegations, include essential

facts, and demonstrate an established relationship with Penn State, Oldham has not

made out a case against the University or its Title IX coordinator and fencing

coaches.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge