Oldham v. The Pa. State Univ.

1

JENNIFER OLDHAM, Plaintiff, v. THE PENNSYLVANIA STATE UNIVERSITY, et al., Defendants.

No. 4:20-CV-02364

United States District Court, M.D. Pennsylvania

May 13, 2022

MEMORANDUM OPINION

Matthew W. Brann Chief United States District Judge.

Jennifer Oldham, a private fencing instructor based in North Carolina was sexually assaulted by The Pennsylvania State University's fencing team assistant coach while the two were on a plane from Oregon to Illinois, the first leg of their respective return trips from a national fencing competition. Oldham notified Penn State's head fencing coach of the assault, but he dismissed her concerns and pressured her not to report the incident. The head coach refused to notify Penn State of the allegation, and then he and his assistant proceeded to spread falsehoods about Oldham and the assault to others in the small, insular competitive fencing community. Nevertheless, the assault was investigated and verified-first, by an independent body; second, by Penn State-and the assistant coach was ultimately banned from USA Fencing activities and fired by the University.

Oldham now brings suit against the Penn State fencing coaches as well as the University and its Title IX coordinator, alleging violations of Title IX of the Education Amendments of 1972 as well as various state law tort claims, including battery defamation, negligent supervision/training, and negligent/intentional infliction of emotional distress. The Defendants move to dismiss the suit in full, arguing that Oldham's claims are both untimely and legally unsubstantiated. Although all but one claim qualify as timely, the lack of an established relationship with Penn State and absence of certain material allegations necessitate dismissal.

I. BACKGROUND

A. Factual Background

On December 12, 2017, members of Penn State's fencing team were on a commercial flight from Portland, Oregon to Chicago, Illinois, returning from a USA Fencing North America Cup tournament.^[1] As Oldham describes it, Penn State fencing is “perennially an NCAA powerhouse and championship contender and trainer of Olympians.”^[2] And its head coach, Wieslaw Glon, is an institution unto himself-a coach at Penn State since 1985, Glon is the author of the program's success and deeply connected to, and highly regarded in, the small, insular, male-dominated competitive fencing community.^[3] Although it is unclear whether Glon traveled with the Penn state fencers competing in the North America Cup tournament, his assistant coach, George Abashidze, attended the event and accompanied his team members on the return flight from Portland to Chicago.^[4]

Jennifer Oldham, a private fencing instructor who operates a fencing club in Durham, North Carolina, was also on the flight.^[5] She attended the North America Cup tournament as a coach for a fencer from her private club.^[6] On the plane, Oldham had a middle seat in a standard three-seat row, with Abashidze to her left in the aisle seat.^[7] Although not traveling together, the two were “generally acquainted.”^[8] To Oldham's right, in the window seat, sat another passenger returning from the fencing event whom Oldham also knew prior to the flight.^[9]

Whatever expectations Oldham had of a cordial return trip with professional acquaintances proved misplaced. During the four-hour flight, “Abashidze made numerous lewd comments, touched Oldham's legs, arms, and face without her consent, and repeatedly demanded that Oldham have sex with him”-all “within earshot of nearby passengers.”^[10] And mid-flight, as the plane crossed “somewhere over the Great Plains region of the United States, ” Abashidze “thrust his hand between . . . Oldham's legs and grabbed her genitalia without her consent.”^[11] Upon returning to North Carolina, Oldham shared the details of Abashidze's sexual assault with her husband.^[12] She also sought advice from her professional mentor and former fencing coach, Ed Korfanty, a longtime friend of Glon's.^[13] In January 2018, Korfanty called Glon and spoke with him about the assault.^[14] Glon, in turn, spoke with Abashidze, and the two decided “Glon would not share information about Abashidze's misconduct with Penn State's Title IX Coordinator or anyone else in the Penn State Athletic Department.”^[15]

The following month, Penn State's fencing team competed in a tournament at Duke University in Durham, North Carolina-Oldham's hometown.^[16] Glon and Abashidze traveled with the team to Durham, and Glon and Oldham arranged to meet.^[17] During their meeting, Oldham detailed what Abashidze did to her on the plane and gave him a written summary of the assault.^[18] She asked Glon if he was going to report Abashidze's assault to the Penn State Athletic Department, and he responded, “No.”^[19] Glon then attempted to convince Oldham not to report the incident to the United States Olympic and Paralympic Committee's SafeSport program-an independent, Congressionally created organization granted “exclusive authority to respond to sexual misconduct within the U.S. Olympic and Paralympic Committee and each sport's National Governing Body”-by asserting that if the assault became known, it would ruin her reputation and no one would believe her.^[20] Then, Glon brought Abashidze into the conversation with Oldham and directed him to apologize to her.^[21]

Following this February 2018 encounter, unnamed individuals advised Oldham to report the sexual assault to SafeSport.^[22] Indeed, the passenger seated to Oldham's right on the plane submitted a report to SafeSport detailing what he or she saw.^[23] Nevertheless, Oldham was hesitant to do so herself, fearful of the negative professional and reputational consequences Glon mentioned.^[24]

In April 2018, Oldham attended a USA Fencing North America Cup tournament in Richmond, Virginia.^[25] Glon was also at the tournament, coaching members of the Penn State fencing team, as was Korfanty, Oldham's mentor and former coach.^[26] Korfanty arranged for the three to meet.^[27] Over coffee, Glon again pressured Oldham not to engage with SafeSport, asserting that Oldham “would not be believed if the story was uncovered or made public” and that “SafeSport would take no action against Abashidze.”^[28] Glon told Oldham that if she was questioned by SafeSport, she should refute the allegations filed by third-party witnesses.^[29] He then stressed “what a ‘good guy' Abashidze was, ” explaining how “the growing fallout from the assault was causing him anxiety, stress, and a loss of sleep.”^[30]Oldham, for her part, suggested to Glon that he had a duty to report the incident to Penn State.^[31]

On June 30, 2018, Oldham's husband (acting without Oldham's knowledge) contacted Penn State's Athletic Director about the assault.^[32] Penn State's Title IX Coordinator, Defendant Christopher Harris, and another official in the Penn State Athletic Department spoke with Oldham's husband by phone, explaining that his report of Oldham's allegations against Abashidze and Glon that day was “the first they heard of the situation.”^[33] Harris and others then organized a phone interview with Oldham on August 14, 2018, during which Oldham detailed Abashidze's assault and Glon's refusal to report it.^[34] She asked Harris to investigate both Penn State employees, and, in response, he began an Affirmative Action Office (“AAO”) investigation into matter.^[35] Although Oldham did not hear from Harris between August 2018 and February 2019, the third-party allegations filed with SafeSport received considerable attention. Contrary to Glon's assertion that SafeSport “would take no action against Abashidze, ”^[36] the independent organization “investigated the allegations against Abashidze, found him to be responsible for the assault, and publicly suspended Abashidze from any association or involvement with USA Fencing sanctioned events and programs in 2018.”^[37] Abashidze appealed the suspension, and SafeSport convened an arbitration hearing to adjudicate the matter.^[38] During the arbitration proceedings, which were held in December 2018, Abashidze, Glon, Oldham, and others testified.^[39] Abashidze and Glon disputed Oldham's description of the assault, with both men labeling Oldham a “liar.”^[40] But, ultimately, the arbitration panel found Abashidze responsible for the assault and publicly suspended him from any involvement with USA Fencing for a year.^[41]

During this time, Oldham experienced “harassment and retaliation through electronic media and in person at international competitions, which was instigated by Abashidze's and Glon's falsehoods shared with their friends and supporters in the fencing community and those who were doubters of the burgeoning international #metoo movement.”^[42] For example, Oldham heard colleagues “minimize and dismiss the assault because Abashidze did not ‘present an immediate threat to minors'” and “merely ‘brushed someone's arm on a plane.'”^[43]As a result, Oldham “dramatically reduced her attendance at regional- and national-level fencing tournaments in the United States, international tournaments, games and events, workshops, and collegiate recruitment events.”^[44] Oldham “felt too uncomfortable to attend an invitational tournament held at Penn State the weekend of November 3, 2018.^[45] Additionally, it is Oldham's belief that Penn State and other NCAA fencing programs headed by friends of Glon and Abashidze refused to recruit or offer fencing scholarships to any of her students.^[46] This reduced the appeal of her fencing academy, leading “recruitable (college-bound) athletes” to leave her academy and instead join “a competing neighboring club.”^[47]

In January 2019, Oldham learned that Glon interfered with her application for a coaching position with the fencing program at the...