Ross & Girten and Lauri Waldman Ross, Miami; Duane Morris and Michael W. Casey, III, Miami, for appellant.
Amlong & Amlong, William R. Amlong, Kareb Coolman Amlong and Jennifer Daley, Fort Lauderdale, for appellee.
Before WELLS, C.J., CORTIÑ AS, and ROTHENBERG, JJ.
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  and in her complaint, to an unpled claim of age-plus-sex discrimination and allowed a trial to proceed on this unpled theory. For that reason, we reverse.
Mitzel was hired at age thirty-five by Sunbeam as a reporter for WSVN-TV (Channel 7) in late 1988. She initially
contracted for a two year term as a " medical reporter," but over a period of years, executed a series of additional, two or three year contracts. On February 11, 2005, when Mitzel was fifty-one years old, the parties executed their final employment contract. In this and each of the parties' contracts, Sunbeam reserved the sole right to schedule and assign programming.
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" ). See § 760.10, Fla. Stat. (2006). This charging
document form called for Mitzel to " check the appropriate box" for the " cause of discrimination," listing " race," " color," " sex," " religion," " national origin," " age," " retaliation," and " other (specify)," as the basis for a discrimination claim. Mitzel, who was represented by an attorney, checked only the " age" box as the basis of her discrimination claim, leaving the " race," " color," " sex," " religion," " national origin," " retaliation," and " other," boxes blank. In the " Particulars" portion of the charging document, Mitzel made no mention of sex discrimination, claiming only that she was discriminated against on the basis of her age:
I am a 52 year old woman who has worked as a broadcast journalist for Sunbeam Television Corp. (WSVN-TV) for approximately 17 years. I was, until my termination, one of very few of the more than 30 broadcast journalist [sic] there who is 50 or older. I was terminated with two years remaining on my current contract, being given no reason other than the station was " changing directions" in its healthcare reporting, which was the area that I covered. I previously had served as the station's primary backup anchorperson, sitting in as a news anchor four of five times a month. Once I turned 50, however, I was never asked to serve as an anchor; instead, the station used persons who were substantially younger than I.
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:
1. This is a[sic] age-discrimination action brought pursuant [to] the Florida Civil Rights Act of 1992 by Marilyn A. Mitzel, a 53-year-old woman whom Sunbeam Television Corp. fired as Channel 7's healthcare reporter even though two years remained on her contract....
4. Marilyn A. Mitzel (" Mitzel" ) is a 53-year-old woman who worked as a broadcast journalist for Sunbeam Television Corp. (WSVN-TV) for approximately 17 years. She is protected by the age-discrimination provision of the Florida Civil Rights Act of 1992, §§ 760.01, et seq., Fla. Stat. (2007).
6. Section 760.10(1)(a), Fla. Stat. (2003), provides in pertinent part:
(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's ... age ...
8. Mitzel was in December 2005 one of the very few of the more than 30 broadcast journalists employed by Sunbeam Television Corp. at Miami's Channel 7, WSVN-TV, who was 50 year[s] old or older.
9. Additionally, Mitzel previously had served as the station's primary back-up anchorperson, sitting in as a news anchor four or five times a month.
10. Once Mitzel turned 50, however, Sunbean [sic] never again asked her to serve as an anchor: instead, the station used persons who were substantially younger than Mitzel.
13. Sunbeam offered Mitzel no reason for terminating her other than the station was " changing directions" in its health-care reporting [.]
14. Sunbeam's termination of Mitzel was based on Mitzel's age, and constituted ...