Because the original complaint did not include allegations of sex discrimination, it is improper to let this new theory proceed to the jury because the employee did not first pursue her administrative remedies.

The Court of Appeals for Florida's Third District reversed a jury verdict finding age discrimination in violation of Florida's Civil Rights Act of 1992 and awarding $950,000 to a 51-year-old television reporter whose contract was not renewed after a 16-year career. The employee's complaint, as consistently held throughout the litigation, was based solely on a claim of age discrimination. However, following the United States Supreme Court's opinion in Gross v. FBL Financial Services, Inc., 557 US 167, 129 S. Ct. 2343 (2009), which firmly established the "but for" standard for proving an age discrimination claim, the employee, facing a summary judgment motion, changed her theory to an age plus sex discrimination claim, which would only require the employee to show that sex was a motivating factor. See Gross, 129 S. Ct. at 2349. The Third District Court of Appeal held that it was improper to let this new theory proceed to the jury because the employee did not first pursue her administrative remedies and the complaint did not include an allegation of sex discrimination. The court also found that the trial court should not have allowed the employee's liability expert to testify that the employer's actions were motivated by the employee's age or sex without any objective evidence to support her opinions. Without objective evidence, the expert's opinion was nothing more than speculation and conjecture.

Case Law Alert - 2nd Qtr 2012