Proving up the Number of Employees

Originally published by Thomas J. Crane.

Every lawsuit has some small but critical detail. One critical element for any defense is the number of workers employed by the employer. If the Defendant employer wants to take advantage of the caps on damages, it must show the number of employees. In THF Management Houston Corp. v. Gideon, No. 14-18-01103-CV, 2020 WL 771332 (Tex. App. Amarillo 1/6/20201), the jury found for the employee and found she suffered discrimination. The jury awarded $225,000 in compensatory damages. TJF Management had enough employees that the lowest cap would apply, $50,000. But, the $50,000 cap would only apply if the employer plead the caps, and if the employer then showed the number of employees at trial. But, the employer did not plead the cap and did not seek a finding by the jury about the number of employees.

But, said the court, THF Management did raise the issue in a motion for new trial. A motion for new trial is not trial evidence. The appellate court found testimony by one of the THF witnesses that it had less than 50 employees, so the FMLA did not apply. The court of appeals also pointed to the plaintiffs EEOC charge that indicated the defendant had 15-100 employees. The court of appeals then relied on those two pieces of evidence to find the cap should apply. See the decision here. That is pretty thin evidence, but it satisfied the court.

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