WELLS, Chief Judge.
Sunbeam Television Corporation appeals from a final judgment awarding damages on a discrimination claim in favor of Marilyn A. Mitzel, a reporter whose contract Sunbeam opted to terminate. We conclude that the trial court erred when, years into the litigation, it permitted Mitzel to change the theory of her case from one of strictly age discrimination, as reflected in her charge to the FCHR and EEOC
Mitzel was hired at age thirty-five by Sunbeam as a reporter for WSVN-TV (Channel 7) in late 1988. She initially
Early that same year, Alice Jacobs, Channel 7's Vice President of News and the head of Sunbeam's news operations had informed Mitzel that she wanted to change the format of the medical news that Mitzel was reporting. Jacobs, with over twenty-one years experience in the newsroom at Sunbeam and with complete control over news programming at Channel 7, had become increasingly convinced since 9/11 that viewers had become more interested in stories related to international news, terrorism, and politics, and Jacobs had decided to move away from the standard medical reports that Mitzel was presenting in favor of more current, breaking medical news stories. At her direction, a number of Mitzel's standard reports, including "Health Cast" and "Doc Talk," were cut back or entirely eliminated, and Mitzel was told to concentrate on breaking medical news. By December of that year, 2005, Jacobs decided to take the station in a different direction and to eliminate the medical reporter position altogether. Jacobs advised Robert Leider, the Executive Vice President of Sunbeam and General Manager of Channel 7, of her decision, who in turn discussed it with Edward Ansin, the owner of the station. Both agreed with her decision, and on December 13, 2005, Leider advised Mitzel that Sunbeam was discontinuing her contract, because it was "going in a different direction with medical news." The next day, Sunbeam notified Mitzel in writing that it was exercising its option not to renew her contract.
Mitzel subsequently requested additional compensation and benefits, a waiver of her contract's non-compete provision, and written confirmation that she was "not fired for any reason but that [her] segment was eliminated." At no point did Mitzel ask to stay on at the station in another capacity. Sunbeam paid all sums due, released Mitzel from her contract's non-compete obligation and acknowledged in writing that "WSVN-TV is eliminating the position of Health Specialist." Sunbeam thereafter cut its medical news reporting by more than half, reducing that coverage from every day, to two or three times a week, with reports being read by news anchors and lasting only ninety seconds out of a thirty minute newscast. Sunbeam also reduced the support personnel for medical news.
On May 24, 2006, Mitzel filed a Charge of Discrimination form with the FCHR and the EEOC claiming a violation of the Florida Civil Rights Act ("FCRA").
When the Charge was not resolved by the EEOC, Mitzel filed a one count complaint under the Florida Civil Rights Act of 1992, alleging solely age discrimination:
(Emphasis added).
Sunbeam answered that it had legitimate reasons for its actions and that any claim exceeding the scope of the administrative charge was impermissible and time-barred. For almost the next four years this case proceeded solely as an age discrimination case. During a pretrial deposition taken on March 4, 2008, Mitzel reconfirmed that her action was based solely on a claim of age discrimination and was founded on two, and only two, actions: (1) Channel 7's failure in 2004 to allow her to continue to serve as back-up anchor after she turned fifty and (2) her termination without cause:
At no point in this deposition, or otherwise up to this point, did Mitzel state or suggest that her claim was also premised on a claim of sex discrimination.
Mitzel also acknowledged that, other than her perceptions, she had no facts to support her claim. Rather, Mitzel deduced that she was the victim of age discrimination because she was doing a good job and could "think of no other reason" for the termination:
In contrast, Alice Jacobs testified at deposition, and Robert Leider confirmed, that Jacobs had sole control over the day-to-day operations of Channel 7's newsroom. She made all personnel decisions
Jacobs further testified that although Mitzel had done some anchoring for the station in the past, she found Mitzel ill suited for such duty. Jacobs found Mitzel was "not very good" at ad-libbing breaking news and thought she looked uncomfortable doing it. Thus, when the time came to eliminate the medical reporter position, Jacobs decided to terminate Mitzel rather than move her to another reporting position. Leider and Ansin approved of her decision.
After two-and-one-half years of discovery, in December 2009, Sunbeam moved for summary judgment. Based on the pleadings and discovery taken, Sunbeam claimed entitlement to a judgment as a matter of law on Mitzel's age discrimination claim, the only claim asserted up to that point. The company argued first, following Sunbeam's purported "reduced use" discrimination relating to its refusal to use Mitzel as a back-up anchor, that Mitzel had failed to file a Charge of Discrimination with the FCHR within 365 days of the alleged discrimination as required by section 760.11(1) of the Florida Statutes; and second, that Mitzel could not satisfy the burdens imposed by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or demonstrate that "but for" her age, her employment would not have been terminated, the standard set out in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).
At this point, with Sunbeam's motion for summary judgment pending and the heavy evidentiary burden so recently set out in Gross on age discrimination cases looming over Mitzel's single-count age discrimination claim, this action underwent a complete transformation from an age discrimination only action to an age plus sex discrimination action, an action which might allow Mitzel to muddy the waters, by reference to the Title VII standard for recovery, where a claim of discrimination can be advanced on a plaintiff's claim that being an older
Two months after the motion for summary judgment was filed, Mitzel for the first time identified an expert witness, Sherlynn Howard-Byrd, Ph.D., an associate professor and Chair of the Department of Mass Communications at Alcorn State University in Alcorn, Mississippi. Mitzel also filed a declaration, prepared by Mitzel's attorney and signed by Dr. Howard-Byrd, in which Dr. Howard-Byrd admitted that she could not "testify that Sunbeam Television Corp.'s termination of Marilyn Mitzel was age discriminatory." Despite the fact that this admittedly first time expert witness could shed no light on the only issue raised by the pleadings in this case, she declared under oath:
These opinions were, as Dr. Howard-Byrd's deposition confirmed, based on nothing more than anecdotal evidence, hearsay, and rank speculation. Indeed, Dr. Howard-Byrd conducted no studies and undertook no investigation that would permit her to determine what Channel 7's staffing patterns were or whether they were consistent with any recognized industry standards. She also conceded that while in her opinion age discrimination in broadcast news begins at age forty, Channel 7 employed at least seven broadcast journalists over that age, four of whom (not including Mitzel) are female, including one a number of years older than Mitzel. She further admitted that her conclusion that there exists "a widespread industry practice of basing decisions concerning the retention of older journalists, especially older women journalists, on consumer preference (be it documented or perceived) for `sweet young things' rather than seasoned professionals," was premised on no statistics whatsoever, since admittedly none exists, but was premised on nothing more than "flipping through the [T.V.] channels and seeing things";4 conversations with her students at Alcorn State University; a study about the
Dr. Howard-Byrd's second opinion, that Alice Jacobs' decision to change the delivery of medical news was without objective support, was derived in significant part from her review of Neilsen ratings from which she concluded that Mitzel's medical reports were viewer favorites. However these ratings were based on fifteen minute news segments during which Mitzel's medical news ran for no more than two minutes. Dr. Howard-Byrd, however, attributed an uptick in ratings solely to Mitzel's reports, irrespective of the other reports presented by other newscasters during these segments. Moreover, this conclusion was reached without Dr. Howard-Byrd having watched the full fifteen minute newscasts that were the subject of the reports.
Dr. Howard-Byrd's conclusion that Jacobs was not being truthful when she said she wanted to reduce, and then reduced, the number of medical reports is based on Dr. Howard-Byrd's conclusion that the number of such reports had not been reduced and indeed would not have been reduced because they were "popular" with viewers. First, Dr. Howard-Byrd had to admit that she had no idea how many medical reports were aired weekly either before or after Mitzel's position was terminated. Indeed, she had viewed only two medical reports and was unaware that standard, non-breaking, medical news reports had been reduced between 2003 and 2006 from eight a week to only two. Second, as for her conclusion that such reports were popular with viewers, according to Dr. Howard-Byrd, she knew this because she had seen such reports "everywhere," and "popular wisdom is that health news is and always will be big news."
Dr. Howard-Byrd's final conclusion that
In conjunction with Dr. Howard-Byrd's April 7, 2010 declaration, and just before the scheduled summary judgment hearing,
Sunbeam promptly moved in limine to preclude any testimony regarding Mitzel's new allegation of sex discrimination or age-plus-sex discrimination, including that of her newly identified expert. On April 9, 2010, the trial court denied Sunbeam's summary judgment motion, as well as its motions to exclude Mitzel's sex discrimination allegations and her expert's testimony. Following a five day trial centered around Mitzel's age-plus-sex theory, a jury returned a verdict finding that age was "a substantial or motivating factor that prompted" Sunbeam to terminate Mitzel, and awarded her $790,000 for past lost wages and benefits, $97,000 for future wages and benefits, and $50,000 for punitive damages. After denying Defendant's Amended Motion for Judgment in Accordance with the Prior Motion for Directed Verdict or, in the Alternative, Motion for a New Trial, the trial court entered judgment in Mitzel's favor.
Sunbeam advances a number of arguments for reversal of this judgment, including the argument that this plaintiff should not have been permitted to proceed on a new theory that went beyond anything either claimed in her FCHR/EEOC Charge or advanced in her complaint. Because we agree with this argument, we reverse and remand for reconsideration of this case solely on the issue of age discrimination.
The Florida Civil Rights Act of 1992 (FCRA), prohibits discrimination in the workplace because of an individual's race, color, sex, national origin, age, handicap, or marital status. See § 760.10, et. seq., Fla. Stat. (2007); Brown Distrib. Co. of W. Palm Beach, 890 So.2d at 1230 n. 1; see also Hogan, 986 So.2d at 641. Under its provisions, an individual claiming discrimination in the workplace must first file an administrative complaint with the FCHR within 365 days of an alleged violation
The purpose of these requirements is to notify the employer of discriminatory practices and to provide the FCHR with "the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts." See Gregory v. Ga. Dept. of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004); Buzzi v. Gomez, 62 F.Supp.2d 1344, 1351 (S.D.Fla.1999).
These purposes are, of course, frustrated when a claimant asserts one set of claims in the administrative proceedings but attempts to assert another set of unrelated claims in a subsequent civil action. See Gregory, 355 F.3d at 1280. Thus, while "judicial claims are allowed if they `amplify, clarify, or more clearly focus' the allegations in the [administrative] complaint,... allegations of new acts of discrimination are inappropriate." Id. at 1279-80 (quoting Wu v. Thomas, 863 F.2d 1543, 1548 (11th Cir.1989)); see Gaston v. Home Depot USA, 129 F.Supp.2d 1355, 1365 (S.D.Fla.2001) ("Absent some allegation of fact [in the administrative proceeding] that put the defendant on notice of the nature and scope of the claim against it, the plaintiff is barred from asserting other types of claims in subsequent judicial proceedings that may bear some connection, however distinct, to the bare claim asserted in the [administrative] charge.").
In this case, Mitzel's administrative charge of discrimination and the claim of discrimination made in her complaint are the same: both allege discrimination based solely on age. But the claim that Mitzel was allowed to go to the jury on was completely different. See Evans v. Techs. App. & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996) (confirming that "age discrimination does not necessarily flow from sex discrimination and vice versa"); Arnett v. Aspin, 846 F.Supp. 1234, 1240-41 (E.D.Pa. 1994) (confirming that age and sex discrimination are not the same thing); see also Cartee v. Wilbur Smith Assocs., Inc., No. 3:08-4132-JFA-PJG, 2010 WL 1052082, at *3 (D.S.C. Mar. 22, 2010). While Mitzel's administrative claim nowhere suggests that older
We also find reversible error in allowing Mitzel, via Dr. Howard-Byrd's testimony, to try an entire industry, the broadcast news industry, for age and sex discrimination rather than trying the issues raised in her pleadings—that is, whether Sunbeam engaged in age discrimination against her when it eliminated her position. At the hearing on Sunbeam's motion in limine, its counsel unsuccessfully sought to exclude Dr. Howard-Byrd's testimony because, among other reasons, it was not relevant to the issues raised by the pleadings
As Rowe Entertainment, Inc., v. The William Morris Agency, Inc., No. 98 Civ. 8272(RPP), 2003 WL 22272587, at *1 (S.D.N.Y. Oct. 2, 2003), confirms, this type of generic evidence is not necessarily probative of a discrete discrimination claim. There, four black promoter agencies sued white booking agency defendants alleging a conspiracy to exclude the plaintiffs from promoting concerts on the basis of race. The plaintiffs retained an expert who conducted research of "Institutional Racism in the Entertainment Industry." That expert opined that statistical data on the concert promotion sector showed an institutionalized pattern of racial discrimination. The expert further opined that accounts and incidents recounted by a number of black promoters were similar to accounts and incidents described by the other African Americans in the Concert Promotion Business, all of which purportedly established racial discrimination. The district court excluded this testimony of industry discrimination as irrelevant and prejudicial stating that "the conclusion by [Plaintiff's expert] of institutionalized discrimination in the United States concert promotion industry is not relevant to the issues in Plaintiff's case and would only serve `to interject substantial unfair prejudice into the case' and confuse the jury by directing its attention from the issues in this case." Id. at *7; see also Rolls-Royce Corp. v. Heros, Inc., No. 3:07-CV-0739-D, 2010 WL 184313, at *6 (N.D.Tex. Jan. 14, 2010) ("An opinion is unhelpful to a trier of fact if it attempts to apply a general observation about a larger group to particular individuals whose conduct is in question."). The same may be said here. The fact that a handful of broadcast stations may have engaged in improper employment actions based on age does not prove that this is what happened here.
For these reasons, the order under review is reversed with this matter remanded to the court below for consideration of Mitzel's claim of age discrimination.
Id. at *4.
She later filed a civil action wherein she attempted to claim discrimination based on her gender. The court rejected the new claim concluding that it did not serve to "amplify, clarify, or more clearly focus" the allegations of age discrimination and retaliation made in the administrative complaint:
Id. at *4.