*

Honorable Betty B. Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by designation. 

 1Maynard went on to work for Pneumatic in several capacities, but for sake of brevity and clarity we

summarize his positions as "assembly line worker." 

 2At trial, Maynard described his walking abilities as follows:

Q: [I]f you walked more than [40 or 50 yards], would it cause your back to hurt?

A: [My back] would start tensing up and I just have to stop for maybe five seconds and let the

muscles start relaxing and then I can keep right on going. 

Donald C. MAYNARD, Plaintiff-Appellant,

v.

PNEUMATIC PRODUCTS CORP., Defendant-Appellee.

No. 99-12881.

United States Court of Appeals,

Eleventh Circuit.

Nov. 22, 2000.

Appeal from the United States District Court for the Middle District of Florida.(No. 98-00022-CIV-OC-10C),

William Terrell Hodges, Judge.

Before TJOFLAT, WILSON and FLETCHER*

, Circuit Judges.

WILSON, Circuit Judge:

Donald C. Maynard appeals the district court's grant of judgment as a matter of law to Pneumatic

Products Corporation ("Pneumatic"). Because Maynard failed to prove that he is disabled within the meaning

of the Americans with Disabilities Act ("ADA"), we affirm.

I. BACKGROUND

Pneumatic Products Corporation ("Pneumatic") hired Donald Maynard in 1991 as an assembly line

worker on Pneumatic's filter product line.1 In 1994, Maynard sustained an on-the-job back injury in which

he herniated a disc in his back. By March, 1996, as a result of the herniated disc, Maynard could not lift more

than 14 pounds, sleep sufficiently (due to severe back pain), sit in a chair for more than 15-20 minutes at a

time, stand for more than 10-15 minutes at a time, bend at the waist, run up steps, or walk more than 40-50

yards at a time.2

 Pneumatic knew about Maynard's back condition, and the limitations caused by his

condition.

Pneumatic terminated Maynard's employment in March, 1996, purportedly because it was
 3

Ordinarily, a complaining party must file charges with the EEOC within 180 days of "the alleged

unlawful employment practice." 42 U.S.C. § 2000e-5(e)(1) (1994). However, the time for filing a charge

may be extended to 300 days in so-called "work-sharing states," if the complainant first files a timely

charge in a state or local agency in the work-sharing state. Work-sharing states enter into work-sharing

agreements with the EEOC, whereby states that have state or local agencies that have "authority to grant

or seek relief from such [discriminatory] practice," receive notice of the alleged discrimination and an

opportunity to investigate the allegations before a charge may be filed with the EEOC. 42 U.S.C. § 2000-

5(e)(1). A charge may be filed with the EEOC after the state or local agency terminates its investigation. 

Under the Florida-EEOC work-sharing agreement, once charges are filed with the FCHR, there is "an

instantaneous 'constructive termination' " of the FCHR proceedings, and the EEOC may begin its

investigation. See Griffin v. Air Products and Chemicals, Inc., 883 F.2d 940, 943 (11th Cir.1989). 

Maynard filed a charge with the EEOC within 300 days; however, he never filed a charge with Florida's

state agency, the FCHR.

EEOC "Form 5" allows a complaining party to check a box near the bottom of the form,

which signals the EEOC to file the Form with the state agency also (here, the FCHR). When the

complaining party does so, the EEOC forwards the charge to the state agency, and the party is

deemed to have filed charges with the state agency first (as required by 42 U.S.C. § 2000e-5(e)(1)

to extend the period for timely filing to 300 days). Maynard filled out Form 5, but he failed to

check the box, and never filed directly with the FCHR. Nonetheless, the EEOC did forward

Maynard's charge to the FCHR roughly 351 days after Pneumatic terminated Maynard.

We do not decide today whether Maynard's filing was timely. We do note, however, that

Maynard's filing was not ideal, and caution future claimants that this sort of filing may not suffice

under 42 U.S.C. § 2000e-5(e)(1). 

discontinuing the product line on which Maynard worked. Maynard contended that Pneumatic actually fired

him "because of [his] back." He filed a charge with the Equal Employment Opportunity Commission

("EEOC") slightly less than 300 days after his termination, claiming that Pneumatic violated the ADA by

firing him because of a disability (his back condition). After receiving his right to sue letter, Maynard sued

Pneumatic for violations of the ADA and the Florida Civil Rights Act, Fla. Stat. ch. 760.01 et seq. (1997).

Maynard's claim proceeded to a jury trial, and the district court granted Pneumatic's motion for

judgment as a matter of law before the jury rendered its verdict. The district court granted Pneumatic's

motion for two reasons: first, because Maynard failed to establish that he had a disability within the meaning

of the ADA; and second, because Maynard's EEOC and Florida Commission on Human Relations ("FCHR")

charges were not timely filed, hence his claims were time barred. Maynard appeals both findings. We agree

with the district court that Maynard failed to prove he has a disability; therefore we do not rule on the court's

second ground for dismissal.3

II. DISCUSSION

 We review de novo the district court's grant of judgment as a matter of law, and view all evidence

in the light most favorable to Maynard, the non-movant. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d

1453, 1454 (11th Cir.1998).
 4

It is not clear whether Maynard is appealing the district court's denial of his Florida Civil Rights Act

claim. Maynard has not cited to any caselaw discussing or interpreting the Florida Civil Rights Act.

Regardless, our analysis of the ADA is the same as a disability analysis under the Florida Civil Rights

Act. See Brand v. Florida Power Corp., 633 So.2d 504, 509 (Fla.Dist.Ct.App.1994). 

 5Maynard's complaint alleged that he had a record of an impairment, but Maynard explicitly

abandoned this argument on appeal. Maynard also argues on appeal that Pneumatic "regarded him" as

disabled, as evidenced by Pneumatic's alleged statement that it was firing Maynard "because of [his]

back." Maynard nowhere explains how Pneumatic supposedly regarded him as disabled. Maynard seems

to be arguing that Pneumatic regarded him as disabled in the major life activity of working, i.e., that

Pneumatic fired Maynard because it regarded him as unable to work because of his back. This argument

has no merit, because Maynard presented no evidence tending to prove that Pneumatic regarded him as

disabled in the major life activity of working. See Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 119

S.Ct. 2133, 2139, 144 L.Ed.2d 484 (1999); ("[T]he undisputed record evidence demonstrates that

petitioner is, at most, regarded as unable to perform only a particular job. This is insufficient, as a matter

of law, to prove that petitioner is regarded as substantially limited in the major life activity of working."). 

A. A plaintiff's general burden of proof for a prima facie case under the ADA.

 The ADA prohibits discrimination "against a qualified individual with a disability because of the

disability of such individual in regard to job application procedures, the hiring, advancement, or discharge

of employees, employee compensation, job training, and other terms, conditions, and privileges of

employment." 42 U.S.C. § 12112(a) (1995). To make out a prima facie case of discrimination under the

ADA, an ADA claimant must prove that: (1) he has a disability; (2) he is a qualified individual; and (3) he

was discriminated against because of his disability. See Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132

(11th Cir.1996), modified, 102 F.3d 1118 (11th Cir.1996); 42 U.S.C. § 12112(a). Our focus today is on the

first prong of the prima facie case—whether Maynard proffered sufficient evidence to prove he has a

disability.4

A person has a disability if he: (1) has "a physical or mental impairment that substantially limits one

or more of the major life activities of such individual;" (2) has "a record of such an impairment;" or (3) is

"regarded as having such an impairment." 42 U.S.C. § 12102(2) (1995). Maynard claims to qualify under

the first definition of disability, by claiming to have a physical impairment that substantially limits more than

one of his major life activities.5

 Thus, our consideration "proceeds in three steps." Bragdon v. Abbott, 524

U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). First, we must decide whether Maynard's back

injury is a physical impairment. See id. Second, we must decide whether the activities Maynard claims are

substantially limited by his back injury qualify as major life activities under the ADA. See id. Finally, we

must decide whether Maynard's back injury substantially limits the major life activities identified by

Maynard. See id.
 6

Maynard also contends that his back condition substantially limits several other of his major life

activities, such as sitting and standing. Maynard stated at oral argument that walking was the "primary"

and "clearest example" of his major life activities that were substantially limited. We accordingly limit

our discussion to walking; our analysis would be no different with respect to the other major life

activities suggested by Maynard. 

B. Maynard's prima facie case.

 Maynard claims that his physical impairment—his back injury—substantially limits him in the major

life activity of walking.6

 Because Maynard failed to demonstrate that his ability to walk is substantially

limited as compared to the average person in the general population's ability to walk, Maynard did not

succeed in making out a prima facie case.

Maynard's back injury is a physical impairment. See 29 C.F.R. § 1630.2(h)(1) (1997) ("Physical ...

impairment means [a]ny physiological disorder, or condition ... affecting one or more of the following body

systems: ... musculoskeletal...."). Maynard next needed to identify the major life activity affected by his back

injury. Maynard points to the major life activity of walking, which qualifies as a major life activity under

the ADA. See 29 C.F.R. § 1630.2(i) (1997); Sutton v. United Air Lines, Inc., --- U.S. ----, 119 S.Ct. 2139,

2145, 144 L.Ed.2d 450 (1999). We may then turn to the third Bragdon step, and the heart of this appeal:

whether Maynard proved that his condition substantially limits one or more major life activities.

The ADA fails to define "substantially limits," however the regulations promulgating the ADA

explain:

The term substantially limits means [u]nable to perform a major life activity that the average person

in the general population can perform; or [s]ignificantly restricted as to the condition, manner or

duration under which an individual can perform a particular major life activity as compared to the

condition, manner, or duration under which the average person in the general population can perform

that same major life activity ... The following factors should be considered in determining whether

an individual is substantially limited in a major life activity: (i)[t]he nature and severity of the

impairment; (ii)[t]he duration or expected duration of the impairment; and (iii)[t]he permanent or

long term impact, or the expected permanent or long term impact of or resulting from the impairment.

29 C.F.R. §§ 1630.2(j)(1), (2) (1997); see Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220,

1226 (11th Cir.1999) ("Courts, including the Eleventh Circuit ... frequently look to EEOC regulations to

assess the next analytical step of determining whether a physical impairment substantially limits a major life

activity.").

The EEOC's interpretive guidance on the ADA further instructs:

[A]n impairment is substantially limiting if it significantly restricts the duration, manner or condition

under which an individual can perform a particular major life activity as compared to the average

person in the general population's ability to perform that same major life activity. Thus, for example,

an individual who, because of an impairment, can only walk for very brief periods of time would be
 7

Viewing the evidence in the light most favorable to Maynard, as we must given our standard of

review, we accept Maynard's submissions as true. 

 8With respect to a few of Maynard's other major life activities, Maynard claimed that he cannot sit or

stand for more than brief periods of time, and cannot run up steps. Here again, however, Maynard offered

no evidence showing how long the average person can sit or stand, and how the average person negotiates

steps. 

substantially limited in the major life activity of walking.

29 C.F.R. pt. 1630, App. § 1630.2(j) (1997).

Maynard argues that he is substantially limited in the major life activity of walking because his

impairment "restricts the duration, manner or condition under which [he] can perform [the] major life

activity...." Id. To sustain his burden of proof, Maynard needed to prove that his ability to walk is

significantly restricted as compared to the average person in the general population. This Maynard did not

do.

Maynard claims his back significantly restricts his ability to walk because he cannot walk more than

40-50 yards.7 But Maynard offers no proof of how far the average person can walk.8 Maynard ignores a

crucial element of the disability-prong of the prima facie case: he must demonstrate that he is significantly

restricted in the performance of a major life activity "as compared to ... the average person." 29 C.F.R. §

1630.2(j)(1)(ii); see, e.g., Gonzales v. National Bd. of Med. Exam'rs, 225 F.3d 620 (6th Cir.2000) (comparing

appellant's abilities with abilities of the average person in the general population); Moore v. J.B. Hunt

Transp., Inc., 221 F.3d 944 (7th Cir. 2000) (quotation marks omitted) (citation omitted) ("We do not believe

that these limitations constitute significant restrictions on [appellant's] ability to walk when compared with

the ability of the average person...."); Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25, 32 (1st

Cir.2000) ("[Appellant] has not adduced sufficient evidence that, compared to the average person in the

general population, she was significantly restricted in her hearing."); Doyal v. Oklahoma Heart, Inc., 213

F.3d 492, 497 (10th Cir.2000) ("Because [appellant] introduced no evidence suggesting she experienced

greater difficulty than anybody else learning the new computer system or any other new material, she has

failed to demonstrate that she was significantly restricted in learning."); Bowen v. Income Producing

Management of Oklahoma, Inc., 202 F.3d 1282, 1287 (10th Cir.2000) ("[T]he evidence [shows] that ...

[appellant] retained greater skills and abilities than the average person in general...."); Taylor v. Pathmark

Stores, Inc., 177 F.3d 180, 186 (3d Cir.1999) ("[T]here was no testimony that [appellant] stands or walks,

during the fifty minutes per hour that he can, with any less ability than the average person."); Talk v. Delta
 9

We assume that the plaintiff in Pritchard submitted the necessary comparator evidence. Pritchard

does not indicate otherwise. 

Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.1999) (quotation marks omitted) ("[Appellant] asserts that she

walk[s] with a limp and move[s] at a significantly slower pace than the average person.... We find that,

although [appellant] experiences some impairment to her ability to walk, it does not rise to the level of a

substantial impairment as required by the ADA...."); Colwell v. Suffolk County Police Dept., 158 F.3d 635,

644 (2d Cir.1998) (quoting 29 C.F.R. § 1630.2(j)(2)), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253, 143

L.Ed.2d 350 (1999) ("[T]he evidence was insufficient to support the finding that any of the officers'

impairments were substantial, particularly when evaluated in light of the first EEOC factor: 'the nature and

severity of the impairment' as compared with the average person's ability to perform those activities."); Penny

v. United Parcel Serv., 128 F.3d 408, 414-15 (6th Cir.1997) (quoting Kelly v. Drexel Univ., 94 F.3d 102, 105

(3d Cir.1996)) ("Although the record clearly indicates that [appellant] suffers an impairment that affects to

some degree his ability to walk, he has not 'adduced sufficient evidence from which a factfinder reasonably

could conclude that the nature and severity of his injury significantly restricted his ability to walk as

compared with an average person in the general population.' "); Soileau v. Guilford of Maine, Inc., 105 F.3d

12, 15-16 (1st Cir.1997) ("Impairment is to be measured in relation to normalcy, or, in any event, to what the

average person does."); Nowlin v. K Mart Corp., 50 F.Supp.2d 1064, 1070 (D.Kan.1999) (citation omitted)

("Proof of the lifting restriction alone is insufficient to show substantial limitation. Plaintiff fails to offer any

evidence comparing his lifting ability to that of the general population."); Bochenek v. Walgreen Co., 18

F.Supp.2d 965, 970 (N.D.Ind.1998) ("[Plaintiff] does not offer any expert medical testimony to bolster her

contention that she is substantially limited in walking or the other mentioned activities.").

Maynard suggests that a trier of fact should determine whether his walking restriction amounts to a

substantial limitation. A trier of fact may be the appropriate party to determine whether an ADA claimant

is significantly restricted in the performance of a major life activity. See, e.g., Pritchard v. Southern Co.

Servs., 92 F.3d 1130, 1134 (11th Cir.1996), modified, 102 F.3d 1118 (11th Cir.1996) (In a situation where

the ADA claimant suffered from "marked fatigue, lack of energy, lack of interest, poor concentration,

memory problems, suicidal thoughts, depressed affect, and irritability," we held, "[w]e think this evidence

presents a case for a jury to determine ... whether those symptoms substantially limited a major life

activity.").9

 However, the claimant must present sufficient evidence of the significant restriction before the
 10Van Detta & Gallipeau also aptly observe, "The EEOC's laundry list of evidence relevant to

determining whether an impairment imposes a substantial limitation makes it crystal clear that an

individual's limitation cannot be viewed only in the context of her own life and work." Evidence

comparing the plaintiff's activities in light of the plaintiff's limitations to the unlimited activities of the

average person in the general population is the heart and soul of surviving a Rule 56 motion. This

requires the ADA plaintiff to adduce evidence that creates a genuine factual dispute as to each of the

evidentiary elements identified by the EEOC. Those elements are as follows:

1. That the ADA plaintiff is significantly restricted in

a. the condition; or

b. the manner; or

c. the duration

2. of performing a specific major life activity

3. compared with the

a. the condition; or

b. the manner; or

c. the duration

court may turn the issue over to the trier of fact. This evidence must include information regarding the

abilities of the average person in the general population. Maynard proffered no evidence on this point, and

thus failed to make out a prima facie case.

The simple proposition we clarify today—that plaintiffs must present comparator evidence to

demonstrate their substantial limitations—has been largely overlooked in ADA cases. We take pains to

highlight this obvious and crucial element in a plaintiff's prima facie case because a review of ADA caselaw

demonstrates that plaintiffs are continually failing to present this necessary evidence.

 Some courts have seemingly taken judicial notice of the capabilities of the "average person in the

general population." To the extent other courts have taken judicial notice of the ADA comparator's

capabilities, we disagree with those cases. We instead endorse the proposition that, "To establish that an

impairment substantially limits a major life activity such as sitting, standing, or walking, an ADA plaintiff

must not merely provide evidence of her own limitations.... The first key is to develop comparative evidence.

Who, then, is the relevant comparator? The EEOC regulations provide that it is 'the average person in the

general population.' " Jeffrey A. Van Detta & Dan R. Gallipeau, Judges and Juries: Why Are So Many ADA

Plaintiffs Losing Summary Judgment Motions, and Would They Fare Better Before a Jury? A Response to

Professor Colker, 19 Rev. Litig. 505, 518 (2000) (emphasis added) (quoting 29 C.F.R. § 1630.2(j)(1)).10
4. under which the average person in the general population can perform that same major life

activity. Marshaling this kind of comparative evidence is often what makes the difference

between defeat and victory for an ADA plaintiff on the employer's summary judgment motion. 

Id. at 521-22 (emphasis added) (quotations omitted) (citations omitted). 

 11See, e.g., Bragdon, 524 U.S. at 641, 118 S.Ct. 2196 (holding that HIV victims are substantially

limited in the major life activities of conception and childbirth). 

 12Here, for example, the regulations provide that "an individual who, because of an impairment, can

only walk for very brief periods of time would be substantially limited in the major life activity of

walking." 29 C.F.R. pt. 1630, App. § 1630.2(j). Maynard needed to give a trier of fact some basis on

which to judge whether his walking ability—walking 40-50 yards—is akin to "very brief periods of

time." He could only accomplish this by showing how far the average person can walk, and then likening

that average person's ability to more than "very brief periods of time,"and contrasting that with his ability,

which he would want to liken to a "very brief period[ ] of time." 

 13We will not delineate exactly what evidence would suffice as comparator evidence. We envision

that expert testimony and/or statistical evidence commonly will be used to demonstrate the abilities of the

average person in the general population. As with the comparator evidence required in the context of

demonstrating a substantial limitation in the major life activity of working, the burden we place on

plaintiffs is "not intended to require an onerous evidentiary showing." 29 C.F.R. pt. 1630, App. §

1630.2(j). 

 We note finally that "new" comparator evidence will not be necessary in every case. Comparator

evidence may already be established where, for example, caselaw, the regulations, or the EEOC's interpretive

guidance makes clear that a plaintiff's condition substantially limits a major life activity as compared to the

average person in the general population.11 However, whenever the necessary comparator evidence is not

readily drawn from such a source,12 plaintiffs must provide evidence from which the trier of fact may

determine whether an impairment is substantially limiting.13

III. CONCLUSION

An ADA complainant who alleges that an impairment significantly restricts the performance of a

major life activity must present some evidence of how well the average person in the general population

performs the major life activity in question. The ADA requires this comparator evidence. Since Maynard

failed to present such comparator evidence, the district court properly granted Pneumatic judgment as a matter

of law.

AFFIRMED.