Jennifer Oldham v. Penn State University

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 22-2056

____________

JENNIFER OLDHAM,

Appellant

v.

THE PENNSYLVANIA STATE UNIVERSITY;

WIESLAW R. GLON, as agent for Penn State in his official

capacity and in his individual capacity; CHRISTOPHER J.

HARRIS, Esq., as agent for Penn State in his official

capacity; GEORGE G. ABASHIDZE, as agent for Penn State

in his official capacity and in his individual capacity

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 4:20-cv-02364)

District Judge: Honorable Matthew W. Brann

____________

Argued: March 23, 2023

Before: RESTREPO, PHIPPS, and ROTH, Circuit Judges

(Filed: May 29, 2025)

____________

Cathy E. Crosson [ARGUED]

406 South Eastside Drive

Bloomington, IN 47401

Stephen Lindsay

LINDSAY LAW

46 Haywood Street

Asheville, NC 28801

Kerstin W. Sutton

3215 Deerchase Wynd

Durham, NC 27712

Counsel for Appellant

James A. Keller

Patrick F. Nugent

Amy L. Piccola [ARGUED]

Shane P. Simon

SAUL EWING

1500 Market Street

Centre Square West, 38th Floor

Philadelphia, PA 19102

Counsel for Appellees Penn State University

and Christopher J. Harris

2

Michael J. Engle

Jeffrey A. Lutsky [ARGUED]

Corey S. D. Norcross

STRADLEY RONON STEVENS & YOUNG

2005 Market Street

Suite 2600

Philadelphia, PA 19103

Counsel for Appellee Wieslaw R. Glon

Lee G. Valigorsky [ARGUED]

GLEASON CHERRY & CHERRY

1 North Franklin Street

P.O. Box 505

DuBois, PA 15801

Counsel for Appellee George G. Abashidze

_______________________

OPINION OF THE COURT

_______________________

PHIPPS, Circuit Judge.

This case arises from allegations that during a cross-

country flight following a fencing tournament, a state

university’s assistant fencing coach sexually harassed and

assaulted the woman in the seat next to him. That woman was

also a member of the fencing community: she was a coach at a

private fencing school that she owned. She alleges that when

she told the university’s head fencing coach about this incident,

the coach rebuffed her, pressured her not to report it, and then

along with the assistant coach initiated a retaliation campaign

against her within the fencing community. Even more, she

claims that when the university eventually investigated the

3

matter in response to her formal complaint, it confirmed the

truth of her assertions but concluded that the assistant coach

had not violated any university policy.

Based on those allegations, the private fencing coach sued

the university, the two coaches, and the university’s Title IX

coordinator in the federal district where she resided, even

though neither the university nor any of the sued employees

resided in that state. She claimed that the defendants violated

Title IX of the Education Amendments of 1972, and she also

brought several state-law tort claims. All of the defendants

moved to dismiss the complaint for failure to state a claim for

relief, and all but one of the defendants – the assistant fencing

coach – also challenged venue in at least one respect, such as

by moving to dismiss the case for improper venue or by

moving to transfer the case for either improper venue or the

convenience of the parties. In response to those motions, the

district court transferred the case to a new judicial district –

partially to cure improper venue with respect to the head coach,

the Title IX coordinator, and the state university, and partially

for judicial efficiency with respect to the assistant coach.

After the transfer, the plaintiff amended her complaint, and

the defendants moved to dismiss the claims against them. The

transferee district court dismissed the entire suit. As a matter

of first impression, it held that to bring a Title IX claim, a

plaintiff must be within the zone of interests protected by that

statute and that the plaintiff – as neither a student nor an

employee of the university – was outside of that zone. As for

the state-law tort claims, the transferee district court applied

the choice-of-law rules of the transferee forum and dismissed

all of those claims as untimely or implausible.

On de novo review, most of those conclusions are correct.

A Title IX claim must be within the zone of interests protected

by that statute. But the student-or-employee formulation of the

Title IX zone-of-interests test is inaccurate, and under a correct

understanding of the zone of interests protected by Title IX, the

4

private fencing coach’s Title IX claims against the university

related to her exclusion from fencing events that were hosted

or supervised by the university, as well as any aspects of the

retaliation campaign that occurred or had harm therefrom

manifested on campus, are within that zone. Also, many of the

state-law tort claims are untimely or fail to state a plausible

claim for relief. But because the claims against the university’s

assistant fencing coach were transferred for judicial efficiency,

the choice-of-law rules for the transferor, not the transferee,

forum apply. And application of those rules allows for a longer

statute of limitations such that the tort claims against the

assistant coach are not time barred. Thus, as elaborated below,

we will vacate in part, affirm in part, and remand for further

proceedings.

I. FACTUAL BACKGROUND

(AS ALLEGED IN THE AMENDED COMPLAINT)

A. The Return Flight from a Portland Fencing

Tournament

In early December 2017, USA Fencing – the official

national governing body for the sport of fencing in the United

States1 – held a North American Cup fencing competition in

Portland, Oregon. Jennifer Oldham, the head coach and owner

of a private fencing club in Durham, North Carolina, attended

the tournament. George Abashidze, an assistant fencing coach

at the Pennsylvania State University, also attended.

After the tournament, Oldham, Abashidze, and another

member of the fencing community boarded a red-eye flight

from Portland to Chicago and were seated in the same row.

1

See Amateur Sports Act of 1978, Pub. L. No. 95-606, sec. 2,

§ 201, 92 Stat. 3045, 3050 (1978); USA Fencing, United States

Fencing Association Bylaws § 2.1 (2024),

https://www.usafencing.org/by-laws (choose “United States

Fencing Association Bylaws – Effective September 15, 2024”)

[https://perma.cc/VEP5-QYLF].

5

Oldham had the middle seat, Abashidze was to her left in the

aisle seat, and the other fencing acquaintance was to her right

in the window seat.

Abashidze abused his proximity to Oldham. He made lewd

comments to her. He touched her legs, arms, and face without

her consent. And he repeatedly demanded that she have sex

with him – during the flight. Even more, in the early morning

hours of December 12, 2017, while the airplane was over the

Great Plains, he thrust his hand between her legs and grabbed

her genitalia without her consent.

B. The Initial Aftermath of the Events on the

Flight

Upon her return home to North Carolina, Oldham told her

husband what Abashidze had done to her. She later reached

out to her mentor and former fencing coach for advice on how

to deal with the incident. Her mentor was a long-time friend

of Wieslaw Glon, the head fencing coach at Penn State, and in

January 2018, he spoke over the phone to Glon about

Abashidze’s verbal and physical harassment of Oldham on the

flight. Despite that conversation, Glon did not report the

misconduct to Penn State’s Title IX Coordinator or to anyone

in the hierarchy of the Penn State Athletic Department.

In February 2018, there was a collegiate fencing

tournament in Durham. Both Glon and Abashidze attended

that event as part of their employment with Penn State. While

in town, Glon met with Oldham, and she told him what

happened on the flight from Portland. She also handed Glon a

written account of the incident and watched as he read it. After

providing Glon with that information, Oldham asked whether

he would report the incident to Penn State’s Athletic

Department. Glon refused, and in addition, he discouraged

Oldham from reporting the incident to SafeSport, an

independent organization that investigates and has the

exclusive authority to respond to claims of sexual misconduct

for USA Fencing. He told her that it would be embarrassing

6

for her if the incident were made known and that no one would

believe her. Glon then brought Abashidze into the

conversation and directed him to apologize to Oldham.

After that meeting, Oldham did not report the incident to

SafeSport or to Penn State’s Title IX Coordinator. But

unbeknownst to Oldham, the passenger in the window seat on

the flight from Portland had already reported the incident to

SafeSport.

In April 2018, another fencing tournament brought Glon,

Oldham, and Oldham’s mentor to Richmond, Virginia. At the

prompting of Oldham’s mentor, the three of them had coffee

together. Glon again discouraged Oldham from reporting the

incident to SafeSport for the same reasons as before. He also

urged her to refute allegations by the third-party witness if

questioned by SafeSport. Glon then communicated the

anxiety, stress, and loss of sleep that Abashidze was

experiencing. Oldham told Glon that he had a duty to report

the incident to Penn State. Glon disagreed and explained that

he was watching Abashidze closely and did not believe him to

be a danger to the team.

Over the next few months, there were several developments

related to the incidents on the December 2017 flight. On

June 30, 2018, without Oldham’s knowledge, her husband,

also a fencing professional, emailed Penn State’s Athletic

Director about it. Around the same time, SafeSport

substantiated the report of Abashidze’s verbal and physical

harassment of Oldham, and it suspended Abashidze from any

association or involvement with USA Fencing-sanctioned

events taking place in 2018. Abashidze appealed that

suspension, which led to the scheduling of an arbitration

hearing. And on August 14, 2018, in response to an email from

Oldham’s husband, Penn State’s Title IX Coordinator,

Christopher Harris, interviewed Oldham over the phone about

Abashidze’s conduct and Glon’s failure to report it.

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C. Efforts to Discredit Oldham

Around that same time, Glon and Abashidze were accusing

Oldham of fabricating the verbal and physical harassment

based on nothing more than a brushing of arms on a plane. In

addition, at the SafeSport arbitration hearing in

December 2018, both Glon and Abashidze called Oldham a

liar.

Oldham felt the effects of those developments. Members

of the fencing community, including Oldham’s mentor,

doubted her account, and she began to be shunned at fencing

events. In addition, some of her colleagues in the fencing

community were openly hostile toward her and spread Glon

and Abashidze’s accusations. Also, in pursuit of her

professional aspirations, Oldham had applied for coaching

positions at the University of North Carolina and Northwestern

University, and despite her qualifications, she received no

offers. She later heard that Glon had directly interfered with

her candidacy for one of those positions – the coaching job at

the University of North Carolina, her alma mater.

In response to that hostility and in fear of further retaliation,

Oldham decided against going to fencing events that she

otherwise would have attended. In particular, she did not

attend a fencing tournament at Penn State on November 3,

2018. Nor did she attend the NCAA fencing championship in

March 2021, which Penn State hosted.

Oldham did receive some, albeit incomplete, vindication.

SafeSport, after Abashidze’s arbitration hearing, determined

that Abashidze was responsible for the verbal and physical

harassment of Oldham and affirmed his suspension. Also,

Penn State’s February 2019 Title IX investigation

substantiated the verbal and physical harassment. However,

Penn State also concluded that Abashidze’s conduct did not

violate university policy. On a phone call with Harris before

that initial determination became final, Oldham communicated

her disagreement with that conclusion. But Penn State’s final

8

determination reached the same conclusions as its initial

decision. Dissatisfied with this result, in April 2019, Oldham

submitted a written Title IX complaint against Glon for his

response to Abashidze’s conduct on the December 2017 flight.

After receiving that complaint, Penn State did not

communicate with Oldham about it.

II. PROCEDURAL HISTORY

A. Commencement of Suit in the Middle

District of North Carolina

On May 27, 2020, Oldham sued Abashidze, Glon, Harris,

and Penn State in the United States District Court for the

Middle District of North Carolina. She brought claims under

the implied right of action for Title IX of the Education

Amendments of 1972, Pub. L. No. 92-318, § 901(a), 86 Stat.

235, 373 (1972) (codified in relevant part as amended at

20 U.S.C. § 1681). See generally Cannon v. Univ. of Chi.,

441 U.S. 677, 709 (1979) (recognizing an implied right of

action for violations of Title IX). She also brought claims for

battery, negligence, failure to supervise and train, and infliction

of emotional distress. That district court had original

jurisdiction over the Title IX claims because they arose under

a federal law, see 28 U.S.C. § 1331, and it had supplemental

jurisdiction over the state-law claims because those were

related to her Title IX claims, see id. § 1367(a).2

2

Oldham also invoked diversity jurisdiction, see 28 U.S.C.

§ 1332(a)(1), and her allegations support complete diversity of

citizenship between herself and each of the defendants, see

Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806), as

well as an amount in controversy that is not “to a legal

certainty” below the threshold required for diversity

jurisdiction, St. Paul Mercury Indem. Co. v. Red Cab Co.,

303 U.S. 283, 288–89 (1938). See generally 28 U.S.C.

§ 1332(a) (predicating diversity jurisdiction on claims between

completely diverse parties with a value in excess of $75,000).

9

Defendants filed three separate motions to dismiss that

complaint. Harris and Penn State jointly moved to dismiss for

lack of personal jurisdiction, see Fed. R. Civ. P. 12(b)(2),

improper venue, see id. 12(b)(3), and failure to state a claim,

see id. 12(b)(6). In the alternative, they moved to transfer

venue to the Middle District of Pennsylvania under 28 U.S.C.

§ 1404(a), which permits a transfer to another judicial district

where the case could have been brought “[f]or the convenience

of parties and witnesses, in the interests of justice.” In his own

motion, Glon also moved to dismiss for lack of personal

jurisdiction, see Fed. R. Civ. P. 12(b)(2), improper venue, see

id. 12(b)(3), and failure to state a claim, see id. 12(b)(6). As

an alternative, Glon sought a transfer to the Middle District of

Pennsylvania under either 28 U.S.C. § 1406(a) because the

Middle District of North Carolina was the wrong venue or

under § 1404(a) for convenience. Abashidze also moved to

dismiss the case but only for a lack of personal jurisdiction.

See Fed. R. Civ. P. 12(b)(2).

That briefing convinced the district court in the Middle

District of North Carolina that venue was not proper – only the

February 2018 meeting between Oldham, Glon, and Abashidze

took place there. Oldham v. Pa. State Univ., 507 F. Supp. 3d

637, 645–47 (M.D.N.C. 2020) (hereinafter ‘Oldham I’). To

remedy that venue problem, the court made a hybrid transfer.

It relied on the defect-curing transfer statute, 28 U.S.C.

§ 1406(a), to transfer the claims against Glon, Harris, and Penn

State – each of whom had moved to transfer venue in the

alternative – to the Middle District of Pennsylvania. Oldham I,

507 F. Supp. 3d at 649.3 And instead of severing the claims

against Abashidze – who did not move to transfer venue – the

court sua sponte invoked the convenience-transfer statute,

28 U.S.C. § 1404, to transfer those claims to the Middle

District of Pennsylvania as well. Oldham I, 507 F. Supp. 3d at

3

This transfer pursuant to 28 U.S.C. § 1406(a) was partially

made sua sponte as only Glon had specifically requested a

transfer under § 1406(a).

10

650. No party sought review of those rulings in the Fourth

Circuit.

B. The Litigation in the Middle District of

Pennsylvania

On September 28, 2021, after the transfer of venue, Oldham

amended her complaint. That pleading had two counts for

violations of Title IX against all defendants: one for deliberate

indifference to discrimination (Count I) and the other for

exclusion from university programs and activities (Count II).

The remaining five counts were for tort claims under state law:

for defamation against everyone except Harris (Count III);

breaches of the duties to supervise and to train against everyone

except Abashidze (Count IV); battery against Abashidze and

Penn State (Count V); negligence and gross negligence against

all four defendants (Count VI); and negligent and intentional

infliction of emotional distress against all four defendants

(Count VII).

The defendants moved to dismiss all of Oldham’s claims.

They contested the plausibility of the Title IX claims and the

state-law tort claims. They also disputed the timeliness of the

defamation claim, which is subject to a one-year statute of

limitations in both North Carolina and Pennsylvania. They

further challenged the timeliness of Oldham’s remaining state-

law tort claims on the grounds that those claims were subject

to Pennsylvania’s two-year statute of limitations – not North

Carolina’s three-year statute of limitations.

The District Court granted those motions. Oldham v. Pa.

State Univ., 2022 WL 1528305, at *29 (M.D. Pa. May 13,

2022) (hereinafter ‘Oldham II’). It rejected the Title IX claims

(Counts I and II) against Abashidze, Glon, and Harris because

Title IX does not impose individual-capacity liability. Id. at

*17. And it dismissed the Title IX claims against Penn State

because Oldham, as neither a student nor an employee, was not

in the zone of interests protected by Title IX. Id. at *18–19.

11

The District Court resolved the state-law tort claims on

timeliness and sufficiency-of-pleadings grounds. It

determined that the defamation claim (Count III) was subject

to a one-year statute of limitations under either North Carolina

or Pennsylvania law, so it dismissed that count without

prejudice because Oldham did not plead any plausible claims

within that period. Id. at *6, 13, 20–22. For the other tort

claims, the District Court applied Pennsylvania’s two-year

statute of limitations instead of North Carolina’s three-year

statute of limitations. Id. at *6. Using that limitations period,

the District Court dismissed without prejudice the claim for

failure to train and supervise (Count IV) against Glon, Harris,

and Penn State because Oldham did not allege facts that would

make such a claim plausible within that time period. Id. at

*13–15, 22–24. And for the remaining tort claims – battery

(Count V), negligence (Count VI), and infliction of emotional

distress (Count VII) – the District Court dismissed those with

prejudice after concluding that Oldham failed to plausibly

allege conduct within the limitations period sufficient to

sustain those counts. Id. at *15–17, 25–29.

In response to that ruling, Oldham elected not to amend her

allegations for the two claims dismissed without prejudice –

defamation and failure to train or supervise. Instead, she

notified the District Court that she would stand on those

allegations. The District Court then dismissed those claims

with prejudice on June 28, 2022.

Through a notice of appeal filed on June 1, 2022, and

amended July 6, 2022, Oldham timely invoked this Court’s

appellate jurisdiction over the District Court’s final decision.

See 28 U.S.C. § 1291; Fed. R. App. P. 4(a)(1)(A). Oldham

now challenges the District Court’s dismissal of all of her

claims except the individual-capacity Title IX claims against

Abashidze, Glon, and Harris. See Fitzgerald v. Barnstable

Sch. Comm., 555 U.S. 246, 257 (2009) (explaining that

Title IX does not authorize suits against individuals).

12

III. DISCUSSION

A. Some of the Title IX Claims Against Penn

State Are Within the Zone of Interests

Protected by Title IX.

The District Court dismissed Oldham’s Title IX claims

against Penn State on the ground that she was not within the

zone of interests that the statute was designed to protect.

Oldham II, 2022 WL 1528305, at *18–19. Under this Court’s

tripartite approach to motions to dismiss for failure to state a

claim for relief, the first step is to identify the elements – or at

a minimum the challenged element – of each claim. See Lutz

v. Portfolio Recovery Assocs., LLC, 49 F.4th 323, 327–28

(3d Cir. 2022) (explaining all three steps). Consistent with that

approach, the District Court, citing the Supreme Court’s

decision in Lexmark International, Inc. v. Static Control

Components, Inc., 572 U.S. 118 (2014), reasoned that a

plaintiff must fall within the zone of interests protected by

Title IX as a prerequisite to stating a claim for relief under

Title IX’s implied cause of action. Oldham II, 2022 WL

1528305, at *18 & nn.209–10. See generally Lexmark,

572 U.S. at 129 (quoting Allen v. Wright, 468 U.S. 737, 751

(1984)).4 In applying that zone-of-interests test at the motion-

to-dismiss stage, the District Court reasoned that only students,

employees, or persons “so closely tied to a university that [they

are] essentially [students]” of an educational institution

receiving federal funding are within the zone of interests

protected by Title IX. Oldham II, 2022 WL 1528305, at *18

4

See generally Cannon, 441 U.S. at 689–709 (concluding that

all four factors identified in Cort v. Ash, 422 U.S. 66, 78

(1975), were satisfied such that a cause of action could be

implied from Title IX); Alexander v. Sandoval, 532 U.S. 275,

282 (2001) (explaining that Cannon held “that Title IX created

a private right of action to enforce its ban on intentional

discrimination”). Cf. generally Franklin v. Gwinnett Cnty.

Pub. Schs., 503 U.S. 60, 71 (1992) (describing how “[Title IX]

supported no express right of action”).

13

(quoting Doe v. Univ. of Ky., 971 F.3d 553, 559 n.4 (6th Cir.

2020)). Although it did not disregard any of Oldham’s

allegations as speculative or too conclusory,5 the District Court

determined that Oldham did not plausibly allege that she was a

student or an employee or that she had a similarly close

relationship with Penn State.6 The District Court therefore

concluded that Oldham was outside of the zone of interests

protected by Title IX, and it dismissed her Title IX claims with

prejudice. See id. at *19.

That ruling presents a question of first impression for this

Court, viz., whether the zone-of-interests test applies to

Title IX claims. For the reasons below, it does, and some of

Oldham’s claims are plausibly within that zone.

Although similar considerations have deep roots in the

common law,7 the Supreme Court originally developed the

5

See Lutz, 49 F.4th at 327–28 (describing the second step of

the motion-to-dismiss analysis as “reviewing the complaint

and disregarding any formulaic recitation of the elements of a

claim or other legal conclusion, as well as allegations that are

so threadbare or speculative that they fail to cross the line

between the conclusory and the factual” (cleaned up)).

6

See Lutz, 49 F.4th at 328 (explaining that under step three of

the motion-to-dismiss analysis, a court “evaluates the

plausibility of the remaining allegations” while “assuming

their veracity, construing them in the light most favorable to

the plaintiff, and drawing all reasonable inferences in the

plaintiff’s favor”).

7

See Lexmark, 572 U.S. at 130 n.5 (“Although we announced

the modern zone-of-interests test in 1971, its roots lie in the

common-law rule that a plaintiff may not recover under the law

of negligence for injuries caused by violation of a statute unless

the statute ‘is interpreted as designed to protect the class of

persons in which the plaintiff is included, against the risk of the

type of harm which has in fact occurred as a result of its

14

zone-of-interests test as a means of determining who could sue

a federal agency under the Administrative Procedure Act. See

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.

150, 153 (1970) (construing 5 U.S.C. § 702); see also Alisa B.

Klein, Major Questions Doctrine Jujitsu: Using the Doctrine

to Rein in District Court Judges, 76 Admin. L. Rev. 327, 363–

64 (2024) (“Lexmark explained that the ‘zone of interests’ test

originated ‘as a limitation on the cause of action for judicial

review conferred by the Administrative Procedure Act.’”

(quoting Lexmark, 572 U.S. at 129)). But the Supreme Court

“ha[s] since made clear” that zone-of-interests considerations

“appl[y] to all statutorily created causes of action . . .

‘unless . . . expressly negated.’” Lexmark, 572 U.S. at 129

(emphasis added) (quoting Bennett v. Spear, 520 U.S. 154, 163

(1997)). Accordingly, it is now “presume[d] that a statutory

cause of action extends only to plaintiffs whose interests ‘fall

within the zone of interests protected by the law invoked.’” Id.

(quoting Allen, 468 U.S. at 757).8 In analyzing another federal

violation.’” (quoting W. Keeton, D. Dobbs, R. Keeton & D.

Owen, Prosser and Keeton on Law of Torts § 36 (5th ed.

1984)) (also citing Gorris v. Scott, [1874] 9 L.R. Exch. 125,

125 (Eng.))); see also Restatement (Second) of Torts § 286

(Am. L. Inst. 1965) (describing how the common-law

negligence per se test applies if the statute’s purpose is “to

protect that interest against the kind of harm which has

resulted” and “to protect that interest against the particular

hazard from which the harm results”).

8

When a statute provides a cause of action for an ‘aggrieved

person,’ a term used in the Administrative Procedure Act, see

5 U.S.C. § 702, the Supreme Court uses a slightly relaxed

version of the zone-of-interests test that was derived from the

APA. That version of the test examines whether a plaintiff is

“arguably within the zone of interests” protected by the statute.

Bank of Am. Corp. v. City of Miami, 581 U.S. 189, 197 (2017)

(quoting Ass’n of Data Processing, 397 U.S. at 153) (applying

the ‘arguably’ formulation of the zone-of-interests text to the

Fair Housing Act, which uses the term ‘aggrieved person’); see

15

civil rights statute, the Fair Housing Act, the Supreme Court

did not reject the presumptive application of the zone-of-

interests test, see Bank of Am. Corp. v. City of Miami, 581 U.S.

189, 197 (2017) (citing 42 U.S.C. §§ 3602(i), 3604(b),

3605(a), 3613(a)(1)(A), (c)(1)), as neither the text of the statute

nor its later amendments “suggest[ed] that Congress intended

to deviate from the zone-of-interests limitation,” id. at 205

(Thomas, J., concurring in part and dissenting in part). The

presumptive application of the zone-of-interests test is

similarly not rebutted with respect to Title IX’s implied cause

of action: nothing in that statute’s original text or its later

amendments suggests an intention to deviate from the

common-law rule. See 20 U.S.C. §§ 1681, 1687. Thus, the

zone-of-interests test applies to Title IX, and only those

persons within the zone of interests it protects are eligible to

sue under its implied cause of action.

Determining whether a person is within the zone of

interests protected by a statute requires analyzing the statute’s

text, construed “using traditional tools of statutory

also Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209, 224–25 (2012) (applying the

‘arguably’ formulation of the zone-of-interests test to an APA

claim); Ass’n of Data Processing, 397 U.S. at 153 (articulating

the ‘arguably’ formulation of the zone-of-interests test for a

claim under the APA); cf. Clarke v. Sec. Indus. Ass’n, 479 U.S.

388, 399–400 (1987) (explaining that the ‘arguably’

formulation of the zone-of-interests test “is not meant to be

especially demanding; in particular, there need be no indication

of congressional purpose to benefit the would-be plaintiff”

(footnote omitted)). Because Title IX, like the statute at issue

in Lexmark, the Lanham Act, see Lexmark, 572 U.S. at 122

(citing 15 U.S.C. § 1125(a)), does not use the term ‘aggrieved

person,’ the standard formulation of the zone-of-interests test

applies.

16

interpretation.” Lexmark, 572 U.S. at 127; see United States v.

Hallinan, 75 F.4th 148, 151 (3d Cir. 2023) (citing Lexmark,

572 U.S. at 127); see also N. Haven Bd. of Ed. v. Bell, 456 U.S.

512, 520 (1982) (“[The] starting point in determining the scope

of Title IX is, of course, the statutory language.”). Applied to

Title IX, much of its protective sweep comes from its

prohibition of discriminatory actions taken on the basis of sex

with respect to federally funded education programs or

activities:

No 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

discrimination under any education program or

activity receiving Federal financial

assistance . . . .

20 U.S.C. § 1681(a) (emphasis added); see also id.

§ 1681(a)(1)–(9) (enumerating exceptions); id. § 1684

(prohibiting discrimination against persons with blindness or a

visual impairment). As originally enacted, the term ‘program

or activity’ was undefined. But after the Supreme Court’s

decision in Grove City College v. Bell, 465 U.S. 555 (1984),

interpreted that term narrowly – to mean that receipt of federal

funding did not “impose institution-wide obligations,” id. at

574 – Congress enacted the Civil Rights Restoration Act of

1987, which defined ‘program or activity’ to encompass “all of

the operations of . . . a college, university, or other

postsecondary institution,” Pub. L. No. 100-259, sec. 3(a),

§ 908, 102 Stat. 28, 28 (1988) (codified as amended at

20 U.S.C. § 1687) (emphasis added); see NCAA v. Smith,

525 U.S. 459, 466 n.4 (1999) (“Congress enacted the CRRA in

response to [Grove City College], which concluded that

Title IX, as originally enacted, covered only the specific

program receiving federal funding.”). Thus, Title IX covers

the operations of colleges and universities that may be

reasonably considered, at least in part, educational. See Doe v.

Mercy Cath. Med. Ctr., 850 F.3d 545, 555 (3d Cir. 2017)

17

(construing the specific phase ‘education program or activity’

to mean any program or activity that “has ‘features such that

one could reasonably consider its mission to be, at least in part,

educational’” (quoting O’Connor v. Davis, 126 F.3d 112, 117

(2d Cir. 1997))).

But that understanding alone does not sufficiently define

the zone of interests protected by Title IX because, as

legislation under Congress’s spending power, Title IX is

subject to a clear-statement rule. See Jackson v. Birmingham

Bd. of Educ., 544 U.S. 167, 181–82 (2005). Under that canon

of construction, Congress must clearly state any conditions on

the grant of federal funds so that funding recipients can

knowingly decide whether to accept those funds. See

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

(1981); see also Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291, 296 (2006); Pa. Dep’t of Hum. Servs.

v. United States, 897 F.3d 497, 511 (3d Cir. 2018). And based

on the Supreme Court’s holding that Title IX creates a private

cause of action, see Cannon, 441 U.S. at 709, one of the

conditions attached to the receipt of Title IX funding is

exposure to civil liability for violating Title IX’s non-

discrimination provisions. See Jackson, 544 U.S. at 182–83.

In its Title IX precedents, the Supreme Court has clarified

the bounds of such liability in several respects, and from that

guidance, two requirements emerge for being within the zone

of interests protected by Title IX. First, for a Title IX plaintiff

to be within that statute’s zone of interests, the funding

recipient must “exercise[] substantial control” over the

individual who mistreats the plaintiff based on sex. Davis ex

rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

645 (1999). Second, the Title IX funding recipient must have

substantial control over “the context” in which the

mistreatment occurred or manifested. Id. at 630 (“[T]he

harassment must take place in a context subject to the

[defendant’s] control.”). Applied here, for Oldham’s claims to

be within the zone of interests protected by Title IX, Penn State

18

must have (i) had substantial control over the alleged offenders

and (ii) had substantial control over the contexts in which the

complained-of discrimination either occurred or manifested.

1. Penn State Had Substantial Control

Over Abashidze, Glon, and Harris.

In evaluating whether Penn State had substantial control

over each of the alleged offenders – Abashidze, Glon, and

Harris – it is significant that they were each employed by Penn

State. As a general principle, an employer exercises control

over its employees. See Restatement (Second) of Agency

§ 220(1) (Am. L. Inst. 1958). And here, at the pleadings stage,

the degree of control that Penn State had over each of those

employees may be inferred as substantial.

With respect to the sexual harassment claims, the amended

complaint alleges that Abashidze was representing the

university on work travel. That allows the reasonable

inference that Penn State exercised substantial control over

him for purposes of Title IX. See Lutz, 49 F.4th at 334 (“[The

plaintiff’s] pleading receives the benefit of reasonable

inferences at the motion-to-dismiss stage.” (citing Connelly v.

Lane Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016))).

As to the retaliation claims, Oldham alleges that the

campaign was widespread and targeted members of the fencing

community over several months. From there, it may be

reasonably inferred that the degree of control that Penn State

had over two of the employees responsible for running its

fencing program and communicating with other members of

the fencing community – Abashidze and Glon – was

substantial enough that Penn State as their employer had the

power to order them to refrain from such a campaign. And

with respect to Harris, the amended complaint alleges that, as

Penn State’s Title IX Coordinator, he was responsible for

handling all reports of sexual misconduct made to Penn State,

so it is reasonable to infer that Penn State had substantial

control over his handling of those reports.

19

2. Penn State Had Substantial Control

Over the Conduct that Occurred or

Manifested on Its Campus.

The second requirement for the Title IX zone-of-interests

test (substantial control over the context in which the

discrimination occurred or manifested) is distinct from the first

requirement (substantial control over the offender). See

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 282

(3d Cir. 1998) (explaining that it is not enough that the

offender was “aided in carrying out the sexual harassment . . .

by his or her position of authority with the

institution.” (internal quotation marks and citation omitted)).

And here, Oldham alleges that the discrimination occurred or

manifested itself across multiple contexts.

The setting in which Oldham’s sexual harassment claims

occurred and manifested was the flight from Portland to

Chicago. As a baseline, a recipient’s grounds or campus

generally qualify as a context over which it exercises

substantial control. See, e.g., Davis, 526 U.S. at 646

(reasoning that because “the bulk” of the misconduct of the

harasser, who was a student, not an employee, “occur[red]

during school hours and on school grounds,” the context of the

harassment was within the school’s substantial control (citing

Doe v. Univ. of Ill., 138 F.3d 653, 661 (7th Cir. 1998), cert.

granted, judgment vacated sub nom. Bd. of Trs. of Univ. of Ill.

v. Doe, 526 U.S. 1142 (1999))). However, there may be

instances in which a funding recipient exercises substantial

control over an off-campus setting as well. See, e.g., Gebser,

524 U.S. at 278, 292–93 (suggesting that a school could be

held liable for a teacher who had a relationship with a minor

student during class time but off of school property). And it is

not difficult to imagine a scenario in which an off-campus

flight might be subject to a university’s substantial control. A

chartered flight or one on which students are traveling with a

university chaperone may well qualify. But the amended

complaint lacks allegations about Penn State’s substantial

control over the flight, even though its allegations support Penn

20

State’s substantial control over Abashidze. And without

allegations connecting the flight itself to the operation of a

program or activity of the university, Oldham has not provided

a basis for inferring that Penn State had substantial control over

that setting.

By comparison, the context for the alleged retaliation

campaign against Oldham was much broader. It was allegedly

orchestrated across the nation, including in Durham, in

Richmond, at a SafeSport hearing, and at other fencing events.

In addition, the effects of the retaliation campaign allegedly

manifested in Oldham’s actual or constructive exclusion from

fencing tournaments and networking events;9 the loss of

employment opportunities as a fencing coach at Northwestern

University and the University of North Carolina; and the

departure of students from her own fencing school. Some of

those contexts may be inferred to be within Penn State’s

substantial control for purposes of Title IX.

It is a reasonable inference that conversations that were part

of the retaliation campaign occurred on Penn State’s campus.

The amended complaint alleges that the campaign was

widespread, so it is reasonable to infer that at least some

conversations occurred in Abashidze’s or Glon’s offices, at

Penn State fencing events, or otherwise while Abashidze and

Glon were on campus. Any conversations that occurred in

those settings were within Penn State’s substantial control and

9

Although Oldham avers that her students faced retaliation at

these events, without also alleging that those students were

unable to sue on their own behalf, she lacks standing to assert

claims for them. See Campbell v. Louisiana, 523 U.S. 392,

397 (1998) (setting forth the requirements for third-party

standing); Pa. Psychiatric Soc. v. Green Spring Health Servs.,

Inc., 280 F.3d 278, 288–89 (3d Cir. 2002) (same); see also

Amato v. Wilentz, 952 F.2d 742, 750 (3d Cir. 1991) (explaining

that a party claiming third-party standing bears the burden of

establishing such standing).

21

thus within Title IX’s zone of interests. See Davis, 526 U.S. at

646 (explaining that a school has substantial control over its

campus). But for the other aspects of the retaliation campaign

– those that occurred off campus or at locations in which Penn

State was not hosting or supervising events – the amended

complaint does not provide a basis for inferring that Penn State

exercised substantial control over those settings.

Even so, the second requirement for the Title IX zone-of-

interests test requires substantial control over the context in

which the discrimination either occurred or manifested. And

even without Penn State’s substantial control over off-campus

settings in which the retaliation campaign may have occurred,

the retaliation campaign is alleged to have manifested in

settings over which Penn State had substantial control. In

particular, Oldham alleges that because of the retaliation

campaign, she was excluded from events hosted by Penn State,

including an invitational fencing tournament the weekend of

November 3, 2018, and the NCAA fencing championships in

March 2021. From the allegation that Penn State hosted those

events, it may be reasonably inferred that Penn State had

substantial control over those settings such that Oldham’s

retaliation claim for exclusion from those events satisfies the

second Title IX zone-of-interests requirement. See Davis,

526 U.S. at 646 (explaining that a school has substantial

control over what occurs during “school activities or otherwise

under the supervision of school employees” (quoting Univ. of

Ill., 138 F.3d at 661)).

The other settings in which the retaliation campaign

manifested itself were not within Penn State’s substantial

control. The amended complaint does not allege that Penn

State hosted or supervised the other fencing tournaments and

events from which she was excluded, and nothing else in that

complaint allows a reasonable inference that Penn State,

merely by participating in those events, exercised substantial

control over those contexts. Oldham further seeks redress for

her lost employment opportunities as a fencing coach at

22

Northwestern University and at the University of North

Carolina. But it is not a reasonable inference from the

allegations in the amended complaint that Penn State exercised

substantial control over the hiring decisions of those two

universities. Similarly, part of Oldham’s Title IX claim

involves the departure of her fencing students based on the

effects of Glon and Abashidze’s alleged retaliation campaign.

The decisions of those students do not qualify as an educational

program or activity over which Penn State had substantial

control. Still, if any of the grounds for Oldham’s exclusion

from those events, her being passed over for the NCAA

Division I coaching positions for which she had applied, or the

loss of her students could be tied back to conversations

occurring in a context over which Penn State had substantial

control, then those components of her claim would also be

within Title IX’s zone of interests. And given the allegations

in the amended complaint as to the campaign’s breadth and

duration, it is reasonable to infer at this stage of the proceedings

that those components of Oldham’s claim are within the zone

of interests protected by Title IX.

B. The District Court Erred in Dismissing Some

of the State-Law Claims Against Abashidze,

but It Correctly Dismissed the State-Law

Claims Against Glon, Harris, and Penn

State.

1. Determining the Forum State for a

Hybrid Transfer of Venue

As claims within federal supplemental jurisdiction, see

28 U.S.C. § 1367(a), Oldham’s tort claims are governed by the

choice-of-law rules of the forum state, see Gluck v. Unisys

Corp., 960 F.2d 1168, 1179 n.8 (3d Cir. 1992) (“The teaching

of Klaxon Co. v. Stentor Elec[tric Manufacturing] Co.,

313 U.S. 487 (1941), requires application of a forum state’s

choice-of-law principles in diversity cases, id., and with

respect to pendent state law claims, see [Sys.] Operations, Inc.

v. [Sci.] Games Dev. Corp., 555 F.2d 1131, 1136 (3d Cir.

23

1977) . . . .”). The forum state for claims transferred under

28 U.S.C. § 1404(a) for the convenience of the parties is the

state in which the original, transferor court is located. See Van

Dusen v. Barrack, 376 U.S. 612, 639 (1964); Ferens v. John

Deere Co., 494 U.S. 516, 531 (1990). The forum state for

claims transferred under 28 U.S.C. § 1406(a) as a cure for

improper venue is the state in which the new, transferee court

is located. See Lafferty v. St. Riel, 495 F.3d 72, 77 (3d Cir.

2007); 15 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3846 (4th ed. 2024 update).

Because the Middle District of North Carolina invoked

both § 1404(a) and § 1406(a) to transfer the state-law claims,

there are two relevant forum states. North Carolina is the

forum state for the claims against Abashidze because those

claims were transferred under § 1404(a) for the convenience of

the parties.10 Pennsylvania is the forum state for Oldham’s

claims against Glon, Harris, and Penn State because those

claims were transferred under § 1406(a) as a cure for improper

venue. Based on those respective forum states, the claims

against Abashidze are governed by North Carolina’s choice-

of-law rules, and the claims against the other defendants are

controlled by Pennsylvania’s choice-of-law rules.

10

The Fourth Circuit allows sua sponte transfers under

§ 1404(a). See Feller v. Brock, 802 F.2d 722, 729 n.7 (4th Cir.

1986). No party challenged that transfer through a mandamus

petition in the Fourth Circuit. See TechnoSteel, LLC v. Beers

Constr. Co., 271 F.3d 151, 153–54 (4th Cir. 2001) (explaining

that a party would need to use a mandamus petition to

challenge a transfer); 15 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 3855 (4th ed. 2024

update) (same). And once the case was transferred, no party

moved to re-transfer the case to the Middle District of North

Carolina. See Hayman Cash Reg. Co. v. Sarokin, 669 F.2d

162, 168–70 (3d Cir. 1982) (discussing the circumstances

under which a motion to re-transfer may be granted).

24

2. The Timeliness of the Tort Claims

Against Abashidze

Because North Carolina is the forum state for the claims

against Abashidze, its choice-of-law rules control. It uses lex

fori for statutes of limitations, see Boudreau v. Baughman,

368 S.E.2d 849, 853–54, 857 (N.C. 1988), and lex loci delicti

for substantive tort law, see SciGrip, Inc. v. Osae, 838 S.E.2d

334, 343 (N.C. 2020). Under lex fori, the law of the forum in

which the case was brought determines the controlling law, so

North Carolina’s relevant statutes of limitations – one year for

defamation and three years for battery, negligence, and

emotional distress – govern those claims against Abashidze.

See Boudreau, 368 S.E.2d at 853–54, 857. Under lex loci

delicti, the law of the state in which the injury occurred

determines the applicable substantive tort law, which includes

both the standard for claim accrual, see Britt v. Arvanitis,

590 F.2d 57, 59 (3d Cir. 1978), and the elements of the claim,

see SciGrip, 838 S.E.2d at 343. Because Oldham pursues

different claims, lex loci delicti must be analyzed on a claim-

by-claim basis. See id. at 344.

a. The Claim for Defamation

Against Abashidze

Under North Carolina’s one-year statute of limitations,

Oldham’s defamation claim must have accrued no earlier than

one year before this lawsuit was filed – in other words, on or

after May 27, 2019. See Boudreau, 368 S.E.2d at 853–54, 857;

N.C. Gen. Stat. § 1-54(3). Using North Carolina’s lex loci

delicti rule to determine when a defamation claim accrues, no

party argues that the defamation occurred in a state other than

North Carolina or Pennsylvania. Under both North Carolina

law and Pennsylvania law, a defamation claim accrues upon

the publication of a non-privileged false statement of fact by a

defendant. See Price v. J.C. Penney Co., 216 S.E.2d 154, 156

(N.C. Ct. App. 1975); Graham v. Today’s Spirit, 468 A.2d 454,

457 (Pa. 1983). Accordingly, for Oldham’s defamation claim

25

against Abashidze to be timely under North Carolina law, such

a statement must have been made on or after May 27, 2019.

But Oldham’s amended complaint does not identify any

defamatory statements made by Abashidze within that period.

She alleges that between August 2018 and February 2019,

Abashidze made non-privileged false statements of fact about

her to members of the fencing community. Oldham also

alleges that Abashidze’s calling her a liar during his testimony

at the SafeSport hearing in December 2018 qualifies as a non-

privileged false statement. All of those statements, however,

were made before May 27, 2019, and are thus time barred. See

generally Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d

1092, 1094 (3d Cir. 1975) (“[A] Rule 12(b) motion can be

utilized when the time alleged in the statement of a claim

shows that the cause of action has not been brought within the

statute of limitations.”).11

b. The Claims for Battery,

Negligence/Gross Negligence,

and Negligent/Intentional

Infliction of Emotional Distress

Against Abashidze

Under lex fori, North Carolina’s three-year statute of

limitations governs Oldham’s claims against Abashidze for

battery, negligence, gross negligence, and negligent and

intentional infliction of emotional distress. See Boudreau,

368 S.E.2d at 853–54, 857; see also N.C. Gen. Stat. § 1-52(5),

(19). Ordinarily, to evaluate the timeliness of these claims, it

would be necessary to determine their accrual dates using

North Carolina’s lex loci delicti rule. See SciGrip, 838 S.E.2d

at 343. But the earliest those claims could have accrued is the

date of the flight between Portland and Chicago, which was

11

Because the defamation claims are otherwise time barred, it

is not necessary to address whether statements made at the

SafeSport hearing qualify as privileged.

26

December 12, 2017, and Oldham filed her original complaint

on May 27, 2020. So even using the earliest possible accrual

date, Oldham filed her lawsuit within the three-year limitations

period permitted by North Carolina law, and those claims are

therefore not time barred.

3. The Challenges by Glon, Harris, and

Penn State to the Tort Claims Against

Them

Like North Carolina, Pennsylvania uses separate choice-of-

law rules for statutes of limitations and tort claims.

Under Pennsylvania law, the determination of the

controlling statute of limitations depends on where the claim

accrued. For claims accruing out of state, Pennsylvania uses a

first-barred rule under which the applicable statute of

limitations is the shorter of Pennsylvania’s and that of the state

where the injury occurred. See 42 Pa. Cons. Stat. § 5521(b);

Kornfeind v. New Werner Holding Co., 280 A.3d 918, 928

(Pa. 2022); Ario v. Underwriting Members of Lloyd’s of

London Syndicates 33, 205, & 506, 996 A.2d 588, 593 (Pa.

Commw. Ct. 2010). For claims accruing in state, Pennsylvania

uses its applicable statute of limitations. See Kornfeind,

280 A.3d at 928; Ross v. Johns-Manville Corp., 766 F.2d 823,

826 & n.3 (3d Cir. 1985) (explaining that “Pennsylvania

courts . . . apply the Pennsylvania statute of limitations” if the

claim accrued in Pennsylvania (citing Freeman v. Lawton,

46 A.2d 205, 207 (Pa. 1946))). Under those rules, regardless

of the state in which the claims accrued, Oldham’s claims

would be time barred if she did not file suit within the

applicable limitations period under Pennsylvania law. That is

so because if the claims accrued out of state, then the

limitations period cannot exceed Pennsylvania’s statute of

limitations. See Aldossari ex rel. Aldossari v. Ripp, 49 F.4th

236, 248 n.17 (3d Cir. 2022) (explaining that when

Pennsylvania’s choice-of-law rules apply, the longest possible

statute of limitations is Pennsylvania’s). And if the claims

accrued within Pennsylvania, then they are governed by

27

Pennsylvania’s applicable statute of limitations. See Ross,

766 F.2d at 826. Thus, Oldham’s defamation claims are time

barred if they did not accrue within Pennsylvania’s one-year

statute of limitations for defamation. See 42 Pa. Cons. Stat.

§ 5523(1). Similarly, Oldham’s remaining claims for battery,

negligence, negligent training and supervision, and negligent

and intentional infliction of emotional distress are untimely if

they did not accrue in the two-year period allowed under

Pennsylvania law for those claims. See id. § 5524(1), (7).

The determination of when a claim accrues is a substantive

question of state tort law, and Pennsylvania uses a two-step

true-conflict rule for substantive tort law. See Melmark, Inc. v.

Schutt ex rel. Schutt, 206 A.3d 1096, 1104, 1106–07 (Pa.

2019). That rule first examines whether there is a “true

conflict” between the laws of the two states. Id. at 1104

(quoting Keystone Aerial Survs., Inc. v. Pa. Prop. & Cas. Ins.

Guar. Ass’n, 829 A.2d 297, 301 (Pa. 2003)). If there is no true

conflict – meaning either that both states’ laws lead to the same

result or that one state has no policy interest in the outcome of

the litigation – then Pennsylvania law applies. See id. But if a

true conflict exists, then the rule dictates the application of the

substantive law of the state with the most significant

relationship to the events and the parties. See id. at 1106–07.

Like North Carolina’s rule, Pennsylvania’s rule requires a

claim-by-claim analysis. See Berg Chilling Sys., Inc. v. Hull

Corp., 435 F.3d 455, 462 (3d Cir. 2006) (Alito, J.).

a. The Claims for Defamation

Against Glon and Penn State

Because Oldham’s defamation claims against Glon and

Penn State are untimely if not filed within Pennsylvania’s one-

year limitation period for such claims, see 42 Pa. Cons. Stat.

§ 5523(1), only defamation claims that accrued within a year

of this lawsuit’s filing are timely. And using Pennsylvania’s

true-conflict choice-of-law rule to determine which state’s law

applies to determine a claim’s accrual, there is no true conflict.

The two states at issue here – North Carolina and

28

Pennsylvania – use the same rule: a defamation claim accrues

upon the publication of a non-privileged false statement of fact

by a defendant. See Price, 216 S.E.2d at 156; Graham,

468 A.2d at 457. Thus, claims premised on such statements

made on or after May 27, 2019, one year before Oldham’s

lawsuit was filed, are timely.

But Oldham brings no such claims. She alleges that Glon

slandered her during a telephone call with her former mentor

in January 2018. Oldham also claims that Glon spread

falsehoods about her within the fencing community between

August 2018 and February 2019, including by calling her a liar

during the December 2018 SafeSport hearing. She further

asserts that Glon slandered her during a telephone call with the

University of North Carolina fencing coach during or before

January 2019. But all of those statements predate May 27,

2019, and they are therefore outside the limitations period.12

Oldham’s defamation claim against Penn State does not

identify any separate statements made by Penn State; rather, it

is premised on Penn State’s liability under respondeat superior

for the statements by Glon and Abashidze. See generally

Commonwealth ex rel. Orris v. Roberts, 141 A.2d 393, 398–99

(Pa. 1958) (explaining respondeat superior under

Pennsylvania law). But since Oldham has not identified any

potentially timely defamatory statement made by Glon or

Abashidze, there is no basis for Penn State’s vicarious liability.

See Ludwig v. McDonald, 204 A.3d 935, 943 (Pa. Super.

Ct. 2019) (explaining that underlying employee liability must

exist for an employer to be held liable under respondeat

superior). Accordingly, the District Court did not err in

dismissing the defamation claim against Penn State.

12

Again, because the SafeSport hearing took place before

May 27, 2019, it is not necessary to determine whether any

statements made at the hearing qualify as privileged.

29

b. The Claim for Battery Against

Penn State

Oldham also invoked respondeat superior to sue Penn State

for battery based on Abashidze’s conduct on the airplane. As

explained above, such a claim is untimely if it was not filed

within Pennsylvania’s two-year statute of limitations. See

Aldossari, 49 F.4th at 248 n.17; 42 Pa. Cons. Stat. § 5524(1).

And, using Pennsylvania’s true-conflict rule to determine the

accrual date for a battery claim, there is no true conflict

between Pennsylvania and the presently unknown state or

states in which the battery occurred. See Melmark, 206 A.3d

at 1104. That is so because the state over which the plane

happened to be flying at the time of the alleged battery is not

alleged to have had any further contact with the parties

regarding the claim or to have any policy interest in the

outcome of this litigation. See id. (explaining that there is no

true conflict when the other state has no policy interest in the

outcome of the litigation). Thus, applying Pennsylvania law,

the claim accrued the day the alleged battery occurred. See

Fine v. Checcio, 870 A.2d 850, 857–58 (Pa. 2005) (explaining

that a battery claim accrues on the date it occurs when the

victim of the battery is aware a touching has occurred). And

because Oldham did not file this suit within two years of the

date of the flight, this claim is time barred.

To excuse the untimeliness of this claim, Oldham argues

for equitable tolling based on her initial filing of the claim in

North Carolina, where venue was determined to be improper.

Pennsylvania law determines whether equitable tolling applies

to its statute of limitations. See Vernau v. Vic’s Market, Inc.,

896 F.2d 43, 45 (3d Cir. 1990) (“[S]tate tolling principles are

generally to be used by a federal court when it is applying a

state limitations period . . . .” (citing Johnson v. Ry. Express

Agency, Inc., 421 U.S. 454, 463–64 (1975)); McKenna v.

Ortho Pharm. Corp., 622 F.2d 657, 663–64 (3d Cir. 1980)

(holding that under Pennsylvania’s ‘borrowing statute,’ the

federal court had to use Ohio equitable tolling cases to

determine whether a diversity cause of action arising in Ohio

30

should be tolled under Ohio’s statute of limitations).13 And

Pennsylvania courts have acknowledged that equitable tolling

may apply when “a plaintiff has asserted his rights in a timely

fashion, but in the wrong forum.” Uber v. Slippery Rock Univ.

of Pa., 887 A.2d 362, 366 (Pa. Commw. Ct. 2005) (citing

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,

1387 (3d Cir. 1994)); see also Nicole B. v. Sch. Dist. of Phila.,

237 A.3d 986, 996 (Pa. 2020) (citing Uber with approval).

However, under Pennsylvania law, to be filed ‘in a timely

fashion,’ a lawsuit must have been filed within the statute of

limitations of the proper forum, which in this case is

Pennsylvania. See Irwin v. Dep’t of Veterans Affs., 498 U.S.

89, 96 & n.3 (1990) (explaining that to be equitably tolled, a

complaint must be filed within the proper statutory period but

through a defective pleading – such as one filed in the wrong

forum); Nicole B., 237 A.3d at 994–96 (favorably citing Irwin

and explaining that “equitable tolling pauses the running of, or

‘tolls,’ a statute of limitations,” so a tolled claim is timely if the

time between injury and the filing of the complaint in the

wrong forum – when the running of the statute of limitations is

paused – is less than the statute of limitations in the correct

forum (quoting Dubose v. Quinlan, 173 A.3d 634, 644 (Pa.

2017))). And when Oldham filed her battery claims in North

Carolina on May 27, 2020, Pennsylvania’s two-year statute of

limitations, which started to run on December 12, 2017, had

already expired. Thus, her battery claim against Penn State is

not susceptible to wrong-forum tolling and is otherwise time

barred.

13

An exception exists “when state tolling principles are not

consistent with underlying federal policy.” Vernau, 896 F.2d

at 45-46 (citing Ry. Express, 421 U.S. at 465). Oldham does

not contend that this exception applies.

31

c. The Claims for Negligence/Gross

Negligence, Failure to Supervise,

and Failure to Train Against Glon,

Harris, and Penn State

Oldham’s claims against Glon, Harris, and Penn State for

negligence, gross negligence, failure to supervise, and failure

to train are premised on breaches of three sets of duties that

those defendants allegedly owed her. See Althaus ex rel.

Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000) (“The

primary element in any negligence cause of action is that the

defendant owes a duty of care to the plaintiff.” (citing Gibbs v.

Ernst, 647 A.2d 882, 890 (1994))); see also SodexoMAGIC,

LLC v. Drexel Univ., 24 F.4th 183, 216–17 (3d Cir. 2022)

(explaining that “the nature of the duty alleged to have been

breached . . . [is] the critical determinative factor” in a

negligence action (quoting Bruno v. Erie Ins., 106 A.3d 48, 68

(Pa. 2014))). The first duty they owed her, she asserts, was to

keep her safe from sexual assault by an employee of the

university. The second was to properly handle her sexual

assault complaint. And the third set of duties relates to training

and supervision: of Abashidze with respect to the alleged

assault; of Glon with respect to his handling of the report of the

alleged assault; and of both Abashidze and Glon with respect

to the retaliation campaign they allegedly ran against Oldham.

Any claim based on a breach of these duties must have been

filed within Pennsylvania’s two-year statute of limitations, see

42 Pa. Cons. Stat. § 5524(7), which operates as the outer bar

for timeliness, see Aldossari, 49 F.4th at 248 n.17. For that

reason, it is not necessary to determine whether Pennsylvania

law imposes on the defendants the asserted first duty – that of

keeping a non-student, non-employee safe from sexual

harassment by a university employee. The latest that any claim

based on that duty and its breach could have accrued was the

date of the alleged harassment, December 12, 2017. See

Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000)

(explaining that the statute of limitations begins running when

a plaintiff suffers an injury unless she could not have

32

reasonably discovered that she was injured); Haugh v. Allstate

Ins. Co., 322 F.3d 227, 231 (3d Cir. 2003) (same). But

Oldham’s filing of this suit in May 2020 was not within two

years of that date, so any such claim is time barred (and not

susceptible to wrong-forum tolling).

The second duty that Oldham claims these defendants

breached – that of properly addressing her Title IX complaint –

is not generally recognized under Pennsylvania law, which

governs because there is no true conflict of law between

Pennsylvania and North Carolina. See Melmark, 206 A.3d at

1104. At most, Pennsylvania imposes on public universities a

statutory duty to investigate claims made by students and

employees. See 24 Pa. Cons. Stat. § 20-2003-J(a) (explaining

that “[a] postsecondary institution shall establish and maintain

an online reporting system to receive complaints of sexual

harassment and sexual violence from students and employees”

and that each “report shall be investigated through the process

established in the postsecondary institution’s sexual

harassment and sexual violence policy”). But that duty does

not extend to claims made by third parties, and Pennsylvania

courts have not imposed a common-law duty upon schools or

public universities to investigate complaints made by non-

students and non-employees. Cf. Brezenski v. World Truck

Transfer, Inc., 755 A.2d 36, 40–41 & n.5 (Pa. Super. Ct. 2000)

(explaining that there is no duty to prevent harm to third parties

unless the injury is reasonably foreseeable; there is a special

parent/child, master/servant, or landowner/lessor relationship;

or one is responsible for someone with dangerous

propensities). Thus, as neither a student nor an employee,

Oldham fails to state a plausible negligence claim against

Glon, Harris, and Penn State based on their alleged

mishandling of her complaint.

As to the third set of duties – those related to training or

supervision – the parties allege a conflict between

Pennsylvania law and North Carolina law. Assuming

arguendo that such a true conflict exists, the next step under

33

Pennsylvania’s choice-of-law rule is to determine which state

has the most significant relationship to the parties and events.

See Melmark, 206 A.3d at 1106–1107. For the parties, Oldham

is a resident of North Carolina, and the defendants are a state

university in Pennsylvania and its employees. The events

about which Oldham complains involve allegations that the

university and its employees did not meet the duties that

Oldham asserts society imposes on them. Thus, Pennsylvania

has a more significant relationship to the parties and the events,

and with that greater interest in “vindicat[ing] the policy

interests underlying” Oldham’s claims, id. at 1107, its

substantive law applies to the failure-to-supervise and failure-

to-train claims.14

For direct liability under the common law for failure to

supervise, Pennsylvania uses the standard set forth in the

Second Restatement of Torts. See Dempsey v. Walso Bureau,

Inc., 246 A.2d 418, 419–20 (Pa. 1968); Hutchison ex rel.

Hutchison v. Luddy, 742 A.2d 1052, 1055 (Pa. 1999); Walters

v. UMPC Presbyterian Shadyside, 187 A.3d 214, 233 (Pa.

2018). That standard limits such a claim in several respects,

14

For perspective, in the context of federal civil rights

litigation under 42 U.S.C. § 1983, where principles of

respondeat superior do not apply, courts have developed

failure-to-supervise and failure-to-train theories of liability.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978);

e.g., Forrest v. Parry, 930 F.3d 93, 107 (3d Cir. 2019); Reitz v.

County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). That

precedent, however, has little if any bearing on failure-to-

supervise and failure-to-train claims under Pennsylvania

common law, which recognizes theories of direct liability and

vicarious liability, including respondeat superior, for tort

claims. See Green v. Pa. Hosp., 123 A.3d 310, 316 (Pa. 2015);

see also Travelers Cas. & Sur. Co. v. Castegnaro, 772 A.2d

456, 460 (Pa. 2001); Salsberg v. Mann, 310 A.3d 104, 123 (Pa.

2024) (citing Tayar v. Camelback Ski Corp., Inc., 47 A.3d

1190, 1196 (Pa. 2012)).

34

including that liability attaches only when the employee acts

outside of the scope of his employment while on his

employer’s premises or while using his employer’s chattels:

A master is under a duty to exercise reasonable

care so to control his servant while acting outside

the scope of his employment as to prevent him

from intentionally harming others or from so

conducting himself as to create an unreasonable

risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in

possession of the master or upon

which the servant is privileged to

enter only as his servant, or

(ii) is using a chattel of the

master, and

(b) the master

(i) knows or has reason to know

that he has the ability to control

his servant, and

(ii) knows or should know of the

necessity and opportunity for

exercising such control.

Restatement (Second) of Torts § 317 (Am. L. Inst. 1965); cf.

Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 489 (3d Cir.

2003) (applying Pennsylvania law and explaining that

“[n]egligent supervision differs from employer negligence

under a theory of respondeat superior”).

35

Oldham’s amended complaint does not plausibly allege that

Harris or Glon had any such duty. As used in the Second

Restatement, the term ‘master’ refers to an owner of the

premises, and later cases have extended it to employers and

those with an ownership interest – but not to supervisors. See

Restatement (Second) of Torts § 317 cmt. b; Brezenski,

755 A.2d at 41–42 (interpreting ‘master’ to refer to the

company employer). This definition forecloses the claims

against Harris and Glon on these allegations. The amended

complaint alleges that Harris was Glon’s supervisor, but it does

not allege that Harris employed Glon or owned the premises.

For similar reasons, the claim against Glon fails: the amended

complaint does not allege that Glon employed Abashidze or

owned the premises.15

The failure-to-supervise tort claim directly against Penn

State also cannot succeed. Failure-to-supervise liability

extends only to a servant’s actions taken outside the scope of

employment. See Restatement (Second) of Torts § 317. And

the amended complaint alleges that “[a]t all relevant times,

Glon and Harris were acting within the course and scope of

their employment by Penn State University,” Am. Compl.

¶ 150. Thus, Oldham’s allegations do not permit a finding of

Penn State’s tort liability for a failure to supervise Glon or

Harris.

Unlike its allegations with respect to Glon and Harris, the

amended complaint is silent on whether Abashidze was acting

within the scope of his employment when he allegedly engaged

in the retaliatory harassment campaign. Silence, however, is

not a solution because being outside of the scope of

employment is a necessary element of a common-law claim for

failure to supervise. See Restatement (Second) of Torts § 317.

15

Because the failure-to-supervise tort claims against Glon and

Harris fail, Penn State cannot be vicariously liable under

respondeat superior based on their actions. See Brezenski,

755 A.2d at 42.

36

And without such an allegation, the only way that a tort claim

against Penn State for failure to supervise Abashidze in this

respect can survive the pleading stage is if it may be reasonably

inferred from the allegations in the amended complaint that

Abashidze’s undertaking a retaliation campaign against

Oldham was outside the scope of his employment. See Lutz,

49 F.4th at 334 (“[The plaintiff’s] pleading receives the benefit

of reasonable inferences at the motion-to-dismiss stage.”

(citing Connelly v. Lane Constr. Corp., 809 F.3d 780, 790

(3d Cir. 2016))).

Such an inference is not reasonable here. In defining ‘scope

of employment,’ Pennsylvania historically endorsed the

formulation by Justice Charles Andrews of the New York

Court of Appeals, which included a high degree of employee

misconduct within the scope of employment:

It is, in general, sufficient to make the master

responsible that he gave to the servant an

authority or made it his duty to act in respect to

the business in which he was engaged when the

wrong was committed, and that the act

complained of was done in the course of his

employment. The master in that case will be

deemed to have consented to and authorized the

act of the servant, and he will not be excused

from liability, although the servant abused his

authority, or was reckless in the performance of

his duty, or inflicted an unnecessary injury in

executing his master’s orders. The master who

puts the servant in a place of trust or

responsibility, and commits to him the

management of his business or the care of his

property, is justly held responsible when the

servant, through lack of judgment or discretion,

or from infirmity of temper, or under the

influence of passion aroused by the

circumstances and the occasion, goes beyond the

37

strict line of his duty or authority, and inflicts an

unjustifiable injury upon another.

Brennan v. Merch. & Co., 54 A. 891, 892 (Pa. 1903) (quoting

Rounds v. Del., Lackawanna & W. R.R. Co., 64 N.Y. 129, 134

(1876) (Andrews, J.)); accord Orr v. William J. Burns Int’l

Detective Agency, 12 A.2d 25, 27 (Pa. 1940) (quoting Rounds,

64 N.Y. at 134). Under that standard, even supposing that

Abashidze’s waging the retaliation campaign went “beyond the

strict line of his duty or authority,” that would not take him

outside of the scope of his employment because his alleged

actions in that respect were the result of a “lack of judgment or

discretion, or from infirmity of temper, or under the influence

of passion aroused by the circumstances and the occasion.”

Brennan, 54 A. at 892 (quoting Rounds, 64 N.Y. at 134).

For completeness, Pennsylvania courts – without a formal

abandonment of that common-law standard – have more

recently gravitated to the scope-of-employment test announced

in the Restatement (Second) of Agency. See, e.g., McGuire ex

rel. Neidig v. City of Pittsburgh, 285 A.3d 887, 892 (Pa. 2022);

Justice v. Lombardo, 208 A.3d 1057, 1070 (Pa. 2019);

Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa. Super.

Ct. 1979). Under that test, which consists of three elements

when the use of intentional force is not implicated, an

employee acts within the scope of his employment “if, but only

if,” (i) he engages in conduct “of the kind he is employed to

perform”; (ii) the conduct “occurs substantially within the

authorized time and space limits”; and (iii) the conduct “is

actuated, at least in part, by a purpose to serve the master.”

Restatement (Second) of Agency § 228(1)(a)–(c) (Am. L. Inst.

1958); cf. id. § 228(1)(d) (including a fourth requirement when

the use of force is involved: that “the use of force is not

unexpectable by the master”).

By the allegations in her pleadings and the reasonable

inferences therefrom, Oldham does not provide a basis for

disproving any of the Restatement’s three relevant elements.

38

For the first element – whether the conduct is of the kind that

Abashidze was employed to perform – Oldham alleges that

Abashidze was an assistant coach and a representative of the

university, and it is unreasonable to infer that in such a

position, his employment did not include speaking with other

coaches and members of the fencing community. The second

element is met as well because Oldham does not allege that

Abashidze conducted the retaliation campaign substantially

outside the authorized time and space limits of his

employment. Nor is that a reasonable inference. Indeed, in her

opening appellate brief Oldham argues, for different reasons,

that it would be reasonable to infer that Abashidze was on his

“office phone[] and/or mingling at campus fencing events”

when he spoke against her. Opening Br. 53. And for the third

element – that the conduct was actuated, at least in part, by a

purpose to serve the master – it is not alleged and cannot be

reasonably inferred that Abashidze’s efforts to discredit

Oldham helped only himself. Rather, a university – especially

one with a history like Penn State’s – would benefit from

having claims that a coach committed sexual assault dismissed

and disregarded. Cf. Wilson v. Libby, 535 F.3d 697, 711–12

(D.C. Cir. 2008) (explaining that under District of Columbia

law, disclosing the identity of a covert agent was within the

scope of employment because it “ar[ose] out of a dispute that

was originally undertaken on the employer’s behalf” (quoting

Council on Am. Islamic Rels. v. Ballenger, 444 F.3d 659, 664

(D.C. Cir. 2006)), abrogated on other grounds by Trump v.

Carroll, 292 A.3d 220 (D.C. 2023))).16 With each of the

16

Other allegations in the amended complaint also make such

an inference unreasonable. Specifically, that complaint alleges

Abashidze was acting within the scope of his employment

when he harassed Oldham and that Glon was acting within the

scope of his employment when he participated in the retaliation

campaign. If Abashidze was acting within the scope of his

employment when he allegedly harassed Oldham, and if Glon

was acting within the scope of his employment when he

allegedly engaged in a retaliation campaign against Oldham,

39

elements indicating that Abashidze acted within the scope of

his employment in allegedly conducting a retaliation

campaign, Oldham has not plausibly alleged a tort claim

directly against Penn State for failure to supervise him in that

respect.

As for the failure-to-train claim, Pennsylvania recognizes

such a tort only in the context of a negligence action. See id.

(explaining that liability may exist “only if all the requirements

of an action of tort for negligence exist” (quoting Restatement

(Second) of Agency § 213 cmt. a (Am. L. Inst. 1958))). The

foundation of a negligence claim is the existence of a

freestanding duty of care. See Althaus, 756 A.2d at 1168; see

also SodexoMAGIC, 24 F.4th at 216–17. And as explained

above, Pennsylvania has not recognized a duty to train

employees to investigate third-party claims of harassment, nor

has it recognized a duty to train employees to not engage in the

defamation of third parties. See 24 Pa. Cons. Stat.

§ 20-2003-J(a). Thus, since Oldham has not adequately

pleaded a negligence claim, she has not adequately pleaded a

failure-to-train claim. And without a claim for direct liability

for failure to train, Penn State cannot be vicariously liable. See

Ludwig, 204 A.3d at 943.

d. The Claims for Negligent and

Intentional Infliction of Emotional

Distress Against Glon, Harris, and

Penn State

For the reasons above, using Pennsylvania’s limitations

period as the outer bounds of timeliness, Oldham’s claims for

the infliction of emotional distress are time barred if they were

not filed within two years of their accrual. See 42 Pa. Cons.

then it is unreasonable to infer that Abashidze was acting

outside the scope of his employment when he allegedly

participated with Glon in the retaliation campaign against

Oldham.

40

Stat. § 5524(7); Aldossari, 49 F.4th at 248 n.17. And because

the alleged in-flight battery occurred outside of that period, the

only potentially timely claims for emotional distress are those

premised on the alleged improper investigation of Oldham’s

report and the retaliation campaign against Oldham as a victim

of harassment. As with the other claims, because Pennsylvania

is the forum state, its true-conflict choice-of-law rule

determines the controlling substantive tort law.

Under the first step of the true-conflict rule, there is a

difference between Pennsylvania and North Carolina

substantive law. In Pennsylvania, claims for both the negligent

infliction and the intentional infliction of emotional distress

require a physical injury. See Toney v. Chester Cnty. Hosp.,

961 A.2d 192, 200 (Pa. Super. Ct. 2008) (requiring a physical

injury for negligent infliction of emotional distress), aff’d,

36 A.3d 83 (Pa. 2011); Swisher v. Pitz, 868 A.2d 1228, 1230

(Pa. Super. Ct. 2005) (requiring a physical injury for

intentional infliction of emotional distress (citing Reeves v.

Middletown Athletic Ass’n, 866 A.2d 1115, 1122 (Pa. Super.

Ct. 2004))); see also Redland Soccer Club, Inc. v. Dep’t of the

Army, 55 F.3d 827, 848 (3d Cir. 1995) (construing

Pennsylvania law to require a physical injury for negligent

infliction of emotional distress); Davis v. Wigen, 82 F.4th 204,

216 (3d Cir. 2023) (construing Pennsylvania law to require a

physical injury for intentional infliction of emotional distress).

See generally Ndungu v. Att’y Gen., 126 F.4th 150, 171

(3d Cir. 2025) (recognizing that “a ruling by the Superior Court

of Pennsylvania is ordinarily an authoritative source of

Pennsylvania state law”). But in North Carolina, claims for the

negligent or the intentional infliction of emotional distress do

not require a physical injury. See Johnson v. Ruark Obstetrics

& Gynecology Assocs., P.A., 395 S.E.2d 85, 97 (N.C. 1990)

(citing Dickens v. Puryear, 276 S.E.2d 325, 332 (1981));

Turner v. Thomas, 794 S.E.2d 439, 446 (N.C. 2016) (citing

Dickens, 276 S.E.2d at 335). Thus, there is a true conflict

between Pennsylvania and North Carolina law.

41

But under the second step of the true-conflict rule,

Pennsylvania has the most significant relationship to the

parties and the events for the same reasons as for the negligent

training and supervision claims. See Melmark, 206 A.3d at

1106–07. The claims relate to a state university in

Pennsylvania and its employees, and North Carolina has little

interest in how Penn State and its employees conduct

investigations into complaints against Penn State employees.

Pennsylvania similarly has a more significant relationship to

the claims of a retaliation campaign against Oldham. Although

Glon and Abashidze allegedly spoke against Oldham, a citizen

of North Carolina, around the country, Pennsylvania has a

particular interest in a state university’s coaches’ carrying out

a retaliatory harassment campaign. Thus, Pennsylvania

substantive tort law applies.

Using Pennsylvania’s formulation, Oldham fails to state a

claim for the infliction of emotional distress, either negligently

or intentionally, because she does not allege any companion

physical injury within the two-year limitations period. See

Toney, 961 A.2d at 200; Swisher, 868 A.2d at 1230; see also

Redland Soccer Club, 55 F.3d at 848; Davis, 82 F.4th at 216.

It was therefore not an error for the District Court to dismiss

those claims against Glon, Harris, and Penn State.

IV. CONCLUSION

For these reasons, the District Court’s decision will be

affirmed in part, vacated in part, and remanded for further

proceedings in accordance with this opinion.

42