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, 

,
§ 201, 

, 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.


                             7
    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, 

(a), 

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

). See generally Cannon v. Univ. of Chi.,

 (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 

, and it had supplemental
jurisdiction over the state-law claims because those were
related to her Title IX claims, see 

 § 1367(a).2

2
  Oldham also invoked diversity jurisdiction, see 

(a)(1), and her allegations support complete diversity of
citizenship between herself and each of the defendants, see
Strawbridge v. Curtiss, 

 (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.,

, 288–89 (1938). See generally 

(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 

(b)(3), and failure to state a claim,
see 

(b)(6). In the alternative, they moved to transfer
venue to the Middle District of Pennsylvania under 

(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

(b)(3), and failure to state a claim, see 

(b)(6). As
an alternative, Glon sought a transfer to the Middle District of
Pennsylvania under either 

(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., 

, 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, 

(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,

, to transfer those claims to the Middle
District of Pennsylvania as well. Oldham I, 507 F. Supp. 3d at
3
  This transfer pursuant to 

(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., 

, 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. 

. 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. 

 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. 

, 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. 

. 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. 

 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. 

 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 

; 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., 

 (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, 

, 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, 

, 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., 

 (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, 

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

 (quoting Allen v. Wright, 

(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, 

, at *18
4
 See generally Cannon, 441 U.S. at 689–709 (concluding that
all four factors identified in Cort v. Ash, 

(1975), were satisfied such that a cause of action could be
implied from Title IX); Alexander v. Sandoval, 

 (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., 

 (1992) (describing how “[Title IX]
supported no express right of action”).
                                13
(quoting Doe v. Univ. of Ky., 

, 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, 

 (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, 

 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, 

 (1970) (construing 

); see also Alisa B.
Klein, Major Questions Doctrine Jujitsu: Using the Doctrine
to Rein in District Court Judges, 

, 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, 

)). 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, 

(emphasis added) (quoting Bennett v. Spear, 

(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.’” 

(quoting Allen, 

).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

, 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, 

 (2017)
(quoting Ass’n of Data Processing, 

) (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, 

 (2017) (citing 

(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,” 

(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 

, 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, 

, 224–25 (2012) (applying the
‘arguably’ formulation of the zone-of-interests test to an APA
claim); Ass’n of Data Processing, 

 (articulating
the ‘arguably’ formulation of the zone-of-interests test for a
claim under the APA); cf. Clarke v. Sec. Indus. Ass’n, 

, 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, 

(citing 

(a)), does not use the term ‘aggrieved
person,’ the standard formulation of the zone-of-interests test
applies.


                                16
interpretation.” Lexmark, 

; see United States v.
Hallinan, 

 (3d Cir. 2023) (citing Lexmark,

); see also N. Haven Bd. of Ed. v. Bell, 

 (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 . . . .

(a) (emphasis added); see also 

§ 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, 

 (1984),
interpreted that term narrowly – to mean that receipt of federal
funding did not “impose institution-wide obligations,” 

 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,” 

(a),
§ 908, 

, 28 (1988) (codified as amended at

) (emphasis added); see NCAA v. Smith,

, 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., 

 (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, 

(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., 

, 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, 

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

 (2006); Pa. Dep’t of Hum. Servs.
v. United States, 

 (3d Cir. 2018). And based
on the Supreme Court’s holding that Title IX creates a private
cause of action, see Cannon, 

, 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., 

 (1999). Second, the Title IX funding recipient must have
substantial control over “the context” in which the
mistreatment occurred or manifested. 

 (“[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, 

 (“[The
plaintiff’s] pleading receives the benefit of reasonable
inferences at the motion-to-dismiss stage.” (citing Connelly v.
Lane Constr. Corp., 

 (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., 

(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, 

(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., 

, 661 (7th Cir. 1998), cert.
granted, judgment vacated sub nom. Bd. of Trs. of Univ. of Ill.
v. Doe, 

 (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,

, 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, 

 (1998) (setting forth the requirements for third-party
standing); Pa. Psychiatric Soc. v. Green Spring Health Servs.,
Inc., 

, 288–89 (3d Cir. 2002) (same); see also
Amato v. Wilentz, 

 (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, 

 (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,

 (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

(a), Oldham’s tort claims are governed by the
choice-of-law rules of the forum state, see Gluck v. Unisys
Corp., 

, 1179 n.8 (3d Cir. 1992) (“The teaching
of Klaxon Co. v. Stentor Elec[tric Manufacturing] Co.,

 (1941), requires application of a forum state’s
choice-of-law principles in diversity cases, 

 and with
respect to pendent state law claims, see [Sys.] Operations, Inc.
v. [Sci.] Games Dev. Corp., 

, 1136 (3d Cir.
                                23
1977) . . . .”). The forum state for claims transferred under

(a) for the convenience of the parties is the
state in which the original, transferor court is located. See Van
Dusen v. Barrack, 

 (1964); Ferens v. John
Deere Co., 

 (1990). The forum state for
claims transferred under 

(a) as a cure for
improper venue is the state in which the new, transferee court
is located. See Lafferty v. St. Riel, 

 (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, 

, 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., 

, 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, 

, 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,

, 853–54, 857 (N.C. 1988), and lex loci delicti
for substantive tort law, see SciGrip, Inc. v. Osae, 

, 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,

 (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;

(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., 

(N.C. Ct. App. 1975); Graham v. Today’s Spirit, 

 (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., 

 (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 

(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 

(b);
Kornfeind v. New Werner Holding Co., 

, 928
(Pa. 2022); Ario v. Underwriting Members of Lloyd’s of
London Syndicates 33, 205, & 506, 

 (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., 

,
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,

 (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, 

, 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,

. Thus, Oldham’s defamation claims are time
barred if they did not accrue within Pennsylvania’s one-year
statute of limitations for defamation. See 

(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 

 § 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, 

, 1106–07 (Pa.
2019). That rule first examines whether there is a “true
conflict” between the laws of the two states. 

 at 1104
(quoting Keystone Aerial Survs., Inc. v. Pa. Prop. & Cas. Ins.
Guar. Ass’n, 

 (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 

 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 

 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., 

 (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 

(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, 

; Graham,

. 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, 

, 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, 

 (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, 

 n.17; 

(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, 

. 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 

 (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, 

, 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.,

, 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., 

, 463–64 (1975)); McKenna v.
Ortho Pharm. Corp., 

, 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., 

 (Pa. Commw. Ct. 2005) (citing
Oshiver v. Levin, Fishbein, Sedran & Berman, 

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

, 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., 

, 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, 

 (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, 

). 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, 

 (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, 

 (1994))); see also SodexoMAGIC,
LLC v. Drexel Univ., 

, 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., 

(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

(7), which operates as the outer bar
for timeliness, see Aldossari, 

 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., 

 (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., 

 (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, 

. At most, Pennsylvania imposes on public universities a
statutory duty to investigate claims made by students and
employees. See 

-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., 

, 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., 

, 419–20 (Pa. 1968); Hutchison ex rel.
Hutchison v. Luddy, 

 (Pa. 1999); Walters
v. UMPC Presbyterian Shadyside, 

 (Pa.
2018). That standard limits such a claim in several respects,
14
    For perspective, in the context of federal civil rights
litigation under 

, 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., 

 (1978);
e.g., Forrest v. Parry, 

 (3d Cir. 2019); Reitz v.
County of Bucks, 

 (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., 

 (Pa. 2015);
see also Travelers Cas. & Sur. Co. v. Castegnaro, 

 (Pa. 2001); Salsberg v. Mann, 

, 123 (Pa.
2024) (citing Tayar v. Camelback Ski Corp., Inc., 

 (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., 

 (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,

.
                              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,

 (“[The plaintiff’s] pleading receives the benefit
of reasonable inferences at the motion-to-dismiss stage.”
(citing Connelly v. Lane Constr. Corp., 

(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., 

 (Pa. 1903) (quoting
Rounds v. Del., Lackawanna & W. R.R. Co., 

, 134
(1876) (Andrews, J.)); accord Orr v. William J. Burns Int’l
Detective Agency, 

 (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, 

 (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, 

, 892 (Pa. 2022);
Justice v. Lombardo, 

 (Pa. 2019);
Fitzgerald v. McCutcheon, 

 (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, 

, 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, 

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

 (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 

(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, 

; 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 

-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, 

.

            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, 

 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.,

 (Pa. Super. Ct. 2008) (requiring a physical
injury for negligent infliction of emotional distress), aff’d,

 (Pa. 2011); Swisher v. Pitz, 

(Pa. Super. Ct. 2005) (requiring a physical injury for
intentional infliction of emotional distress (citing Reeves v.
Middletown Athletic Ass’n, 

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

 (3d Cir. 1995) (construing
Pennsylvania law to require a physical injury for negligent
infliction of emotional distress); Davis v. Wigen, 

 (3d Cir. 2023) (construing Pennsylvania law to require a
physical injury for intentional infliction of emotional distress).
See generally Ndungu v. Att’y Gen., 

(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., 

 (N.C. 1990)
(citing Dickens v. Puryear, 

 (1981));
Turner v. Thomas, 

 (N.C. 2016) (citing
Dickens, 

). 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, 

; Swisher, 

; see also
Redland Soccer Club, 

; Davis, 

.
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