COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Raphael and Frucci

Argued at Arlington, Virginia

ALEXIS MAYES

MEMORANDUM OPINION* BY

v. Record No. 1064-23-4 JUDGE STEVEN C. FRUCCI

OCTOBER 1, 2024

CATALYST OPERATIONS &

 ANALYTICS, LLC, ET AL.

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

James P. Fisher, Judge

Michael D. Reiter (Michael E. Duncanson; ChasenBoscolo Injury 

Lawyers, on brief), for appellant.

Neil J. MacDonald (MacDonald Law Group, LLC, on brief), for 

appellee Catalyst Operations & Analytics, LLC.

Harrison J. Clinton (Richard C. Sullivan, Jr.; Bean, Kinney & 

Korman, P.C., on brief), for appellee Applied Fundamentals 

Consulting, LLC.

No brief or argument for appellee Marc C. Gibson.

Alexis Mayes appeals the final order granting judgment against Marc C. Gibson and 

alleges the circuit court erred in granting the demurrers and dismissing Catalyst Operations & 

Analytics, LLC (“Catalyst”) and Applied Fundamentals Consulting, LLC (“Applied”) from her 

personal injury suit. Mayes argues that her amended complaint pleaded sufficient facts to 

proceed on vicarious liability claims and negligent hiring claims against both Catalyst and 

Applied. Finding no error, this Court affirms the circuit court’s judgment.

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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BACKGROUND

In reviewing a circuit court’s decision on a demurrer, we “accept as true all factual 

allegations expressly pleaded in the complaint” and interpret them “in the light most favorable to 

the plaintiff.” Taylor v. Aids-Hilfe Koln e.V., 301 Va. 352, 357 (2022) (quoting Coward v. 

Wellmont Health Sys., 295 Va. 351, 358 (2018)). We also accept any factual allegations that 

“fairly can be viewed as impliedly alleged or reasonably inferred from the facts [expressly] 

alleged.” Hooked Grp., LLC v. City of Chesapeake, 298 Va. 663, 667 (2020) (quoting Welding, 

Inc. v. Bland Cnty. Serv. Auth., 261 Va. 218, 226 (2001)). “But we are not bound by the 

pleader’s conclusions of law that are couched as facts.” Wright v. Graves, 78 Va. App. 777, 781 

(2023). We also “disregard allegations that ‘are inherently impossible[] or contradicted by other 

facts pleaded’ and reject ‘inferences [that] are strained, forced, or contrary to reason.’” New Age 

Care, LLC v. Juran, 71 Va. App. 407, 429 (2020) (second alteration in original) (quoting Parker 

v. Carilion Clinic, 296 Va. 319, 330 & n.2 (2018)). “Our recitation of the facts, of course, 

restates only factual allegations that, even if plausibly pleaded, are as yet wholly untested by the 

adversarial process.” A.H. ex rel. C.H. v. Church of God in Christ, Inc., 297 Va. 604, 614 

(2019).

In 2018, Mayes worked for Catalyst “and/or” Applied.1 At that time, Gibson also worked 

for Catalyst “and/or” Applied as an “agent, employee, servant and/or contractor.” Catalyst and 

Applied are both government contractors “specializing in global counter-intelligence security 

issues.”

In October of 2018, both Catalyst and Applied sent a group of its “supervisors, project 

leads, co-workers, agents, employees, servants, and/or contractors” on a work trip to Boston, 

1 When referring to Mayes’s and Gibson’s employment, we will refer to their employer(s) 

as Catalyst “and/or” Applied, as it is pled. On the other hand, when referring to Catalyst and 

Applied as parties on appeal, we will refer to them as Catalyst and Applied.
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Massachusetts “to conduct countersurveillance.” After a work meeting during that trip, “some” 

of the persons working for Catalyst “and/or” Applied met for dinner and drinks at the 

Renaissance Boston Waterfront Hotel. While there, Mayes fell ill. Gibson took Mayes back to 

her room, and another “coworker and/or supervisor” of Catalyst “and/or” Applied checked on 

Mayes while Gibson was still present in Mayes’s room. Gibson and the other person left Mayes 

in her room, but before he left, Gibson also took Mayes’s room keycard without her permission. 

Gibson returned to Mayes’s room in the early morning hours and sexually assaulted her. Gibson 

also took nude photographs of Mayes without her consent. Gibson was subsequently charged, 

convicted, and sentenced for these actions.2 Mayes alleged that “Gibson acted with a sinister or 

corrupt motive such as hatred, personal spite, ill will, or a desire to injure” Mayes, and that his 

actions “constituted actual malice . . . with a willful and wanton disregard for [Mayes’s] rights.”

All “supervisors, project leads, co-workers, agents, servants, and/or employees” of 

Catalyst “and/or” Applied are required to have security clearances. Mayes alleged in her 

amended complaint that Gibson “had a history of alcohol abuse and drinking issues,” that he had

a “history of gambling issues,” that he had previously been fired from a security related job, and 

that he had lost his security clearance and had already been barred from multiple security 

industry contracts. She also alleged that Gibson “had a history of assaulting [a] 15-year old girl” 

and “had a history of abusing and threatening his ex-girlfriend.” Mayes asserted that Catalyst 

“and/or” Applied “knew or should have known” of Gibson’s issues, that Gibson “did not and/or 

should not have had the necessary security clearance” for employment by Catalyst “and/or” 

Applied, and that Catalyst “and/or” Applied “willfully and wantonly disregarded that knowledge 

allowing him to work for them” and go on a work trip with other Catalyst “and/or” Applied 

2 At the time Mayes filed her amended complaint, Gibson was actively serving a prison 

sentence.
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employees “and/or” contractors. Mayes then alleged that Catalyst and Applied were both 

vicariously liable as Gibson’s employers for his actions and were also negligent in hiring and 

retaining Gibson.

Catalyst and Applied filed demurrers, alleging that the facts pleaded failed to establish 

vicarious liability, negligent hiring, and negligent retention. In addition, they argued that the use 

of “and/or” to describe the working relationship between Mayes, Gibson, and the employers was 

insufficient liability notice as to either Catalyst or Applied. After a hearing, the circuit court 

granted the demurrers “for the reasons stated in the arguments presented by Defendants.” By 

order of May 26, 2023, Mayes received default judgment against the remaining defendant,

Gibson, for his failure to respond to discovery. Mayes now appeals and argues that the 

demurrers were improperly granted.3

ANALYSIS

I. The claim of Assignment of Error 1 was not timely objected to and is thereby waived.

In Mayes’s first assignment of error, she argues that the circuit court erred by not 

explaining why it was accepting the arguments presented by Catalyst and Applied as a basis of 

its ruling. However, we find that Mayes failed to preserve this issue for appellate review. “No 

ruling of the trial court . . . will be considered as a basis for reversal unless an objection was 

stated with reasonable certainty at the time of the ruling, except for good cause shown or to 

enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of th[e] 

contemporaneous objection requirement [in Rule 5A:18] is to allow the trial court a fair 

opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and 

retrials.” Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015). “Specificity and timeliness 

3 Catalyst and Applied, in brief and by motion, allege that this Court should dismiss the 

appeal because Mayes’s assignments of error and notice of appeal are deficient. Finding both are 

sufficient, we deny the motions to dismiss and address the merits of Mayes’s claim.
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undergird the contemporaneous-objection rule, animate its highly practical purpose, and allow 

the rule to resonate with simplicity.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not 

just any objection will do. It must be both specific and timely—so that the trial judge would 

know the particular point being made in time to do something about it.” Id. (third emphasis 

added) (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)). Virginia circuit 

court judges are a resilient lot; a specific and timely objection will often result in judicial selfcorrection by making rulings that protect the litigants from potential error in real time, thereby 

eliminating even the need for an appeal. See Brown v. Commonwealth, 279 Va. 210 (2010).

Mayes failed to raise the objection noted above at a time when the circuit court could 

address the claims and take any necessary corrective action. Accordingly, Mayes failed to 

preserve these issues for appellate review. Rule 5A:18. Although there are exceptions to Rule 

5A:18, Mayes has not invoked them, and we do not do so sua sponte. Spanos v. Taylor, 76 

Va. App. 810, 827-28 (2023).

II. The amended complaint failed to state a claim of vicarious liability or negligent hiring 

 and retention against Catalyst and Applied.

Mayes asserts that her amended complaint pleaded sufficient notice of liability to Catalyst 

and Applied and that the facts pleaded established a dispute as to Catalyst and Applied’s vicarious 

liability and negligent hiring. Assuming without deciding that Catalyst and Applied had sufficient 

notice of liability, notwithstanding the gratuitous use of “and/or” in describing the 

employer-employee relationship,4this Court finds that Mayes failed to plead sufficient facts to 

establish vicarious liability or negligent hiring and retention against Catalyst and Applied and 

affirm the circuit court’s judgment.

4 The Supreme Court of Virginia has stated “that ‘and/or’ is an ‘unfortunate hybrid’ and 

‘a drafting blemish’ because ‘[t]he literal sense of and/or is “both or either,”’ providing three 

possible choices: one, the other or both.” A.H., 297 Va. at 614 n.3 (quoting Antonin Scalia & 

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 125 (2012)).
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“This Court reviews a circuit court’s decision to sustain a demurrer de novo.” Givago 

Growth, LLC v. iTech AG, LLC, 300 Va. 260, 264 (2021). “A demurrer tests the legal 

sufficiency of the facts alleged in a complaint assuming that all facts alleged therein and all 

inferences fairly drawn from those facts are true.” Id. We further “interpret those allegations in 

the light most favorable to the plaintiff.” Taylor, 301 Va. at 357 (quoting Coward, 295 Va. at 

358). “Two important limitations on this principle, however, deserve emphasis.” Patterson v. 

City of Danville, 301 Va. 181, 197 (2022) (quoting Doe ex rel. Doe v. Baker, 299 Va. 628, 641

(2021)). This Court “accept[s] as true unstated inferences to the extent that they are reasonable, 

[but] we give them no weight to the extent that they are unreasonable. The difference between 

the two turns on whether ‘the inferences are strained, forced, or contrary to reason,’ and thus 

properly disregarded as ‘arbitrary inferences.’” Id. (quoting Coward, 295 Va. at 358-59). 

“Second, we must distinguish allegations of historical fact from conclusions of law. We assume 

the former to be true arguendo, but we assume nothing about the correctness of the latter because 

‘we do not accept the veracity of conclusions of law camouflaged as factual allegations or 

inferences.’” Id. (quoting Coward, 295 Va. at 359).

A. Vicarious Liability

Mayes first asserts that her pleading was sufficient to allege vicarious liability against 

Catalyst and Applied because it asserted that the assault occurred during an “ongoing 

counter-surveillance work assignment.” She asserts that when Gibson took her to her room, he 

was acting within the scope of his employment because the work project “would continue into 

the next day.” She further argues that there was a dispute of material fact and a jury should have 

decided whether Catalyst and Applied were vicariously liable for Gibson. We disagree.

Under “the doctrine of respondeat superior, an employer is liable for the tortious acts of 

its employee if the employee was performing his employer’s business and acting within the 
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scope of his employment when the tortious acts were committed.” Plummer v. Center 

Psychiatrists, Ltd., 252 Va. 233, 235 (1996). “The test of liability is not the motive of the 

employee in committing the act complained of, but whether that act was within the scope of the 

duties of employment and in the execution of the service for which he was engaged.” Id. at 

236-37 (quoting Com. Bus. Sys. v. Bellsouth, 249 Va. 39, 45 (1995)).

“[W]hen the complaint alleges that the employee committed a tort in the context of their 

employment, such allegations create ‘a rebuttable presumption that facts exist (though not 

specifically pleaded) that would satisfy the “established test” for vicarious liability . . . .’” Baker, 

299 Va. at 647 (quoting Parker v. Carilion Clinic, 296 Va. 319, 341 (2018)). Then, “the burden 

is on the [employer] to prove that the [employee] was not acting within the scope of his 

employment when he committed the act complained of, and . . . if the evidence leaves the 

question in doubt it becomes an issue to be determined by the jury.” Plummer, 252 Va. at 235

(alterations in original) (quoting Kensington Assocs. v. West, 234 Va. 430, 432-33 (1987)). But 

“[a] plaintiff can plead herself out of court by affirmatively alleging facts that rebut the 

presumption implied in law—no differently than a litigant at trial can rely on an evidentiary 

presumption and yet assert facts that undermine it.”5 Baker, 299 Va. at 648 (alteration in 

original) (quoting Parker, 296 Va. at 341). “For this ‘self-refutation’ to work, however, it ‘must 

be clear, not conjectural and irrefutable rather than debatable.’” Id. (quoting Parker, 296 Va. at 

341).

The plaintiff in Plummer alleged vicarious liability against a psychologist’s employer 

after the psychologist sexually assaulted her during a counseling session. Plummer, 252 Va. at 

5 This issue was recently addressed by this Court in H.C. v. Potomac Hosp. Corp. of 

Prince William, 81 Va. App. 1, 18-19 (2024), wherein we held, under unique facts much more 

challenging than the facts in this case, that the record supported the circuit court’s ruling that a 

sexual assault occurring during working hours was not within the scope of employment.
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234-35. The Supreme Court of Virginia held that the act was within the psychologist’s scope of 

employment because he used his “education, experience, and knowledge” as the victim’s 

psychologist to overcome her will and that he committed the assault “while he was performing 

his duties as a psychologist in the execution of the services for which he was employed.” Id. at 

237. The Supreme Court of Virginia determined that “there simply [were] not sufficient facts 

which would permit us to hold, as a matter of law, that the defendant has met its burden of 

showing that its employee was not acting within the scope of his employment.” Id.

The Supreme Court of Virginia addressed the issue again in Baker, when a religious 

leader employed by a church sexually assaulted a minor in the leader’s home “under the guise of 

offering spiritual advice and comfort.” Baker, 299 Va. at 639-40. The minor sued the employer 

church under a theory of vicarious liability. Id. at 640. The Supreme Court of Virginia held that 

because the religious leader was employed as a “spiritual advisor” that “regularly offered 

physical gestures of comfort to his advisees” as part of his work, the pleading survived demurrer 

on vicarious liability. Id. at 650-51. Similarly, when a nursing home employee sexually 

assaulted a resident while he “undertook to provide care to” the victim as part of his work 

responsibilities, the Supreme Court of Virginia held that the plaintiff’s complaint against the 

nursing home could proceed on vicarious liability. Our Lady of Peace, Inc. v. Morgan, 297 Va. 

832, 844-50 (2019) (holding that the pleading “barely” survived demurrer).

Unlike the cases cited above, the facts pleaded in Mayes’s amended complaint rebut the 

presumption of employer vicarious liability. Both Gibson and Mayes, along with a “group of 

security consultants, agents, employees, servants, and/or contractors working for . . . Catalyst 

and/or . . . Applied Fundamentals,” were in Boston for a work trip on October 17, 2018. There 

was a work meeting that day at the Renaissance Boston Waterfront Hotel. After the meeting, 

“several members of the group,” including Gibson and Mayes, “convened for dinner and drinks.” 
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After Mayes fell ill, Gibson led Mayes to her room. Gibson left the room and took Mayes’s 

keycard without her knowledge. He returned to her room in the early hours and sexually 

assaulted her. There is no indication in the amended complaint that any of Gibson’s actions after 

the work meeting—the dinner and drinks, leading Mayes to her room, stealing her keycard, and 

later sexually assaulting her—related to any of his job responsibilities. The amended complaint 

pleaded no facts that Gibson used any specific work-related skill or opportunity to assault 

Mayes. Mayes’s own pleading therefore established that Gibson’s conduct took place entirely 

outside the work context.

On appeal, Mayes focuses on Gibson’s employment status with Catalyst and Applied and 

argues that a rebuttable presumption of vicarious liability existed based on her asserted

employer-employee relationship. She argues that because the parties contest whether the assault 

was committed within the scope of Gibson’s employment, it should be a jury issue. But based 

on the facts Mayes alleged in her pleading, such an inference would be “strained, forced, or 

contrary to reason.” Patterson, 301 Va. at 197 (quoting Coward, 295 Va. at 359). Unlike 

Plummer, Baker, and Our Lady of Peace, Inc., the facts Mayes alleged in the amended complaint 

established that Gibson was not performing his job duties or taking advantage of his employment 

position when he committed the sexual assault. Her pleading therefore failed to state a claim of 

vicarious liability against Catalyst and Applied.

6

B. Negligent Hiring and Retention

Mayes next asserts that her amended complaint alleged sufficient facts to support a claim 

of negligent hiring and retention. She asserts her pleading was sufficient to show that Catalyst 

6 Mayes also relies on a request for admission to Gibson in which Gibson “admitted” that 

he committed his assault within the scope of his employment. Even if this Court could consider 

a discovery response in evaluating a demurred complaint, we are not constrained by Gibson’s 

conclusions of law, especially as to Catalyst and Applied disputing that conclusion. Patterson, 

301 Va. at 197 (quoting Coward, 295 Va. at 359).
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and Applied should have known that the work group including women would participate in 

dinner and alcohol events and that Gibson’s history was an apparent risk. We disagree.

The independent tort claims of negligent hiring and negligent retention “involve claims of 

direct, not indirect, liability and are separate from respondeat superior claims.” A.H., 297 Va. at

627. Negligent hiring is when “one who conducts an activity through employees is subject to 

liability for harm resulting from the employer’s conduct if the employer is negligent in the hiring 

of an improper person in work involving an unreasonable risk of harm to others . . . .” Id. 

(quoting Southeast Apts. Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999)). An employer is so 

negligent “in placing a person with known propensities, or propensities which should have been 

discovered by reasonable investigation, in an employment position in which, because of the 

circumstances of the employment, it should have been foreseeable that the hired individual posed 

a threat of injury to others.” Id. (quoting Jackman, 257 Va. at 260). “[T]he plaintiff must show 

that an employee’s propensity to cause injury to others was either known or should have been 

discovered by reasonable investigation.” Id. (alteration in original) (quoting Majorana v. Crown 

Cent. Petroleum Corp., 260 Va. 521, 531 (2000)). “‘[T]he inquiry is focused on whether the 

specific danger that ultimately manifested itself,’ here a sexual battery, ‘reasonably could have 

been foreseen at the time of hiring.’” Baker, 299 Va. at 645 (quoting Malicki v. Doe, 814 So.2d 

347, 362 (Fla. 2002)).

As opposed to negligent hiring, “a claim for negligent retention exists ‘for harm resulting 

from the employer’s negligence in retaining a dangerous employee who the employer knew or 

should have known was dangerous and likely to harm [others].” A.H., 297 Va. at 629 (alteration 

in original) (quoting Jackman, 257 Va. at 260-61). The facts “must show that the employer was 

negligent in failing to terminate the dangerous employee.” Id. (internal citations omitted).
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In A.H., the victim’s complaint only asserted “that the church defendants had become 

aware of an allegation of [prior] sexual abuse” and failed to assert that the church defendants 

“knew or should have known of such propensities.” Id. at 628. The complaint therefore failed to 

plead sufficient facts to support negligent hiring. Id. Because of the lack of specifics as to how 

the investigation of the vague sexual abuse claim was resolved, the complaint also did not 

establish a claim of negligent retention. Id. at 629-30.

In Baker, the defendant church had notice at the time of hiring the pastor that he 

previously had “an inappropriate relationship with a young girl when he was a pastor in Marion, 

Virginia,” and that he engaged in “inappropriate behavior toward women while he served as a 

Church of God pastor in Charlottesville, Virginia.” Baker, 299 Va. at 645. But the complaint 

did not allege that any of the “inappropriate” behavior alleged was specifically sexual in nature. 

Id. The Supreme Court of Virginia held that because the allegations did not specify that the prior 

behavior constituted sexual offenses, unsubstantiated or otherwise, that the complaint did not 

state a claim for negligent hiring for a subsequent sexual battery. Id. at 645-46.

After the church hired the pastor, however, the pastor engaged in a worsening pattern of 

known sexual harassment and batteries against women. Id. at 636-39. He then retired, but the 

church permitted him to continue as “an agent, volunteer, and/or employee” of the church “and 

serve as a spiritual leader to certain former congregation members.” Id. at 639. After his 

retirement, he assaulted the plaintiff using his position as a “spiritual leader.” Id. The Supreme 

Court of Virginia held that these pleaded facts stated a sufficient claim for negligent hiring and 

retention after his retirement, because the church knew of the sexual offenses that occurred 

before he retired. Id. at 646.

Mayes’s claim of negligent hiring fails for the reasons set forth in Baker. Mayes alleged 

facts that had no connection to the ultimate harm, including her assertions that Gibson had “a 
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history of alcohol abuse and drinking issues,” a “history of gambling issues,” lost his security 

clearance, been barred from multiple security contracts, and previously been fired from a 

security related job. None of these facts would place an employer on notice that a prospective 

employee was at-risk of specifically committing rape. Mayes alleged in the amended complaint 

that Gibson had a history of “assaulting [a] 15-year old girl” and “abusing and threatening his 

ex-girlfriend.” Despite these allegations, Mayes does not claim that Gibson had sexually 

assaulted either the teenage girl or his ex-girlfriend or that he had a propensity to sexually assault 

female employees. The mere allegation of inappropriate behavior or an inappropriate 

relationship does not give rise to hiring negligence for subsequent sexual abuse.

Although Mayes makes a claim for negligent retention, she pleaded no facts that Gibson 

engaged in any behavior after he was hired that would put Catalyst and Applied on notice as to 

his risk. Therefore, the amended complaint failed to state a claim of both negligent hiring and 

negligent retention.

CONCLUSION

For the foregoing reasons, we affirm the circuit court’s judgment.

Affirmed.