                                                                                 [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                           ________________________                           FILED
                                                                    U.S. COURT OF APPEALS
                                  No. 99-12881                        ELEVENTH CIRCUIT
                                                                          JULY 12, 2001
                            ________________________
                                                                       THOMAS K. KAHN
                                                                            CLERK
                     D. C. Docket No. 98-00022-CIV-OC-10C

DONALD C. MAYNARD,
                                                   Plaintiff-Appellant,

                                          versus

PNEUMATIC PRODUCTS
CORP.,
                                                   Defendant-Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________
                                 (July 12, 2001)


Before TJOFLAT, WILSON and FLETCHER*, Circuit Judges.



______________________
     *Honorable Betty B. Fletcher, U.S. Circuit Judge for the Ninth Circuit, sitting by
     designation.
PER CURIAM:

       Upon sua sponte reconsideration of this appeal, we vacate our prior opinion,

published at 233 F.3d 1344 (11th Cir. 2000), and the opinion set forth below is

substituted in its place.

       Donald C. Maynard appeals the district court’s grant of judgment as a matter

of law to Pneumatic Products Corporation (“Pneumatic”). The grant was

predicated upon the finding that Maynard failed to prove that he timely filed a

charge of discrimination with the Equal Employment Opportunity Commission

(“EEOC”). Because we find that the district court was correct in concluding that

the discrimination charge was not timely filed, we affirm the district court’s grant

of judgment to Pneumatic.

                                    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, and by March of 1996, as a result of the herniated disc, Maynard could not

lift more than fourteen pounds, sleep sufficiently (due to severe back pain), sit in a



       1
         Maynard went on to work for Pneumatic in several capacities, but for sake of brevity and
clarity we summarize his positions as “assembly line worker.”

                                               2
chair for more than fifteen to twenty minutes at a time, stand for more than ten to

fifteen minutes at a time, bend at the waist, run up steps, or walk more than forty to

fifty yards at a time. Pneumatic knew about Maynard’s back condition, and the

limitations caused by his condition.

       Pneumatic terminated Maynard’s employment on March 22, 1996.

Pneumatic purported to fire Maynard because it was discontinuing the product line

on which Maynard worked, but Maynard contended that Pneumatic actually fired

him “because of [his] back.” Maynard submitted an affidavit to the EEOC 292

days after his termination, claiming that Pneumatic violated the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., by firing him because of a

disability (his back condition).2 In response, the EEOC sent Maynard a letter on

January 15, 1997 advising him that he needed to complete the enclosed Form 5

documentation and should return it within five days. (Court Exh. 2). 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). Prior to trial,




       2
         The evidence of the claim being initiated 292 days after his termination on January 8,
1997 takes two forms. In opposition to appellee’s motion for summary judgment, Maynard
attached his affidavit as proof that his claim was timely filed, (Tab 14), and in the EEOC’s notice
to the Florida Commission on Human Relations that the EEOC is investigating the matter
pursuant to the worksharing agreement between the two, they acknowledge the date of receipt of
the charge as January 8, 1997. See EEOC Form 212, March 10, 1997 (Tab 10, Exh. D).

                                                3
Pneumatic at various times raised motions to dismiss and for summary judgment,

all were denied.3

       Maynard’s claim proceeded to a jury trial, and the district court granted

Pneumatic’s motion for a directed verdict following the presentation of plaintiff’s

case. The district court relied on the fact that Maynard’s EEOC charge was not

timely filed, hence his claims were time barred. Alternatively, the court stated that

Maynard failed to establish that he had a disability within the meaning of the ADA.

Maynard appeals both rulings.

                                     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).

       Assuming without deciding, as the district court initially did, that Maynard

made out a prima facie case of disability, we only address an issue we declined to

       3
         It should be noted that Pneumatic continuously contested the timeliness of Maynard’s
filing. Maynard asserted in his initial complaint that he had filed a claim with the FCHR on
November 26, 1996. See Complaint and Demand for Jury Trial, January 26, 1998, ¶ 11 (Tab 1).
Pneumatic’s answer concluded that they were “without knowledge and therefore denied”
Maynard’s assertion on this point. See Defendant’s Answer and Affirmative Defenses, March
10, 1998, at 2 (Tab 5). Pneumatic further asserted as its third affirmative defense that Maynard
failed to meet a condition precedent for filing an ADA based action. Id. at 3. Based in part on
the timeliness issue, Pneumatic filed a motion for summary judgment, which was denied by the
court. See Defendant’s Motion for Summary Judgment, October 13, 1998, ¶ 6, at 2-3 (Tab 10).
After quite a bit of back and forth between the parties to the case and some initial confusion
about the documentation and dates, the district court denied the motion.

                                                4
reach in our original opinion – whether Maynard timely filed his charge with the

EEOC. Timely filing a charge of discrimination is a prerequisite to bringing suit

under both Title VII and the ADA. See Section 706(e) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-5(e) (1994); 42 U.S.C. § 12117(a); Love v.

Pullman, 404 U.S. 522, 523 (1972) (“A person claiming to be aggrieved by a

violation of Title VII of the Civil Rights Act of 1964 . . . may not maintain a suit

for redress in federal district court until he has first unsuccessfully pursued certain

avenues of potential administrative relief.”); Zillyette v. Capital One Fin. Corp.,

179 F.3d 1337, 1339 (11th Cir. 1999) (“It is settled law that, under the ADA,

plaintiffs must comply with the same procedural requirements to sue as exist under

Title VII of the Civil Rights Act of 1964.”). An ADA plaintiff has the burden of

proving all conditions precedent to filing suit, including the condition that he

timely filed with the EEOC. See Jackson v. Seaboard Coast Line R.R. Co., 678

F.2d 992, 1011 (11th Cir. 1982) (“[T]he timely filing of an EEOC complaint is a

condition precedent to a Title VII action”).

      Ordinarily, an ADA plaintiff must file a charge complaining about an

allegedly unlawful employment practice (the “charge”) with the EEOC within 180

days of the employment practice, see 42 U.S.C. § 2000e-5(e)(1) (1994), but the

period for filing a charge with the EEOC may be extended to 300 days if the


                                           5
complainant first files a timely charge in a state or local agency in a “deferral

state.” Id. Deferral states are those that prohibit the unlawful employment practice

at issue and have established state or local authorities to grant or seek relief for

such practice. See Section 706(c) of Title VII, 42 U.S.C. § 2000e-5(c); 42 U.S.C. §

2000e-(e)(1). In deferral states, “no charge may be filed [with the EEOC]. . . by

the person aggrieved before the expiration of sixty days after proceedings have

been commenced under the State or local law, unless such proceedings have been

earlier terminated . . . .” 42 U.S.C. § 2000e-5(c). This gives the deferral state

agencies notice of the alleged discrimination and an opportunity to investigate the

allegations before the federal agency gets involved. See EEOC v. Commercial

Office Prod. Co., 486 U.S. 107, 110 (1988) (The sixty-day deferral period was

included in § 706(c) “to give States and localities an opportunity to combat

discrimination free from premature federal intervention . . . ). Thus, in deferral

states, either a complainant must file with the state agency by the 240th day after

the discriminatory act, or the state agency must terminate proceedings by the 300th

day on a charge filed after the 240th day. See Mohasco Corp. v. Silver, 447 U.S.

807 (1980).

      Deferral states may also enter into worksharing agreements with the EEOC,

whereby the deferral states waive the right to investigate a charge during the sixty-


                                           6
day deferral period. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 2000e-8(b). The

deferral state’s waiver of the opportunity to investigate during the sixty-day

deferral period may constitute a termination of the state’s proceedings, see

Commercial Office Prod., 486 U.S. at 125, thereby making a charge filed after the

240th day timely by virtue of the deferral state’s termination of its proceedings

before the 300th day.

      Maynard filed his charge of discrimination in Florida, a deferral state, but he

never filed a charge with Florida’s state agency, the Florida Commission on

Human Relations (“FCHR”); he instead alleges that he filed his charge directly

with the EEOC, 292 days after Pneumatic terminated him. Maynard’s awkward

filing left him with two important hurdles to jump before he could be deemed to

have timely filed his EEOC charge; first, to be entitled to the 300-day filing period,

as opposed to the usual 180-day period (which, importantly, he missed), Maynard

needed to prove that he filed his charge with the FCHR before the 300th day

following his termination. Second, since he filed more than 240 days after his

termination, he needed to prove that the FCHR terminated its proceedings on his

filing before the 300th day following his termination. To determine whether

Maynard’s EEOC filing constituted a filing with the FCHR, and whether the




                                          7
FCHR terminated its proceedings before the 300th day, we would, ordinarily, look

to the EEOC-FCHR worksharing agreement.

      The agreement’s language would determine whether Maynard’s filing with

the EEOC constituted a simultaneous filing with the FCHR. See, e.g., Puryear v.

County of Roanoke, 214 F.3d 514, 519 (4th Cir. 2000) (quotation marks omitted)

(citing Bolinsky v. Carter Mach. Co., 69 F. Supp. 2d 842, 845-46 (W.D. Va. 1999))

(“The [worksharing agreement] establishes streamlined procedures between the

two agencies for managing claims. Significantly, it designates each agency as the

other’s agent for purpose of receiving and drafting charges of discrimination.

Under the terms of the [worksharing agreement], a claim received by one agency is

deemed received by the other, initiating each agency’s proceedings for purposes of

Title VII, section 706(c). The [worksharing agreement] further provides that each

agency will process the Title VII and ADEA charges it originally receives. . . .

Thus, under the express terms of the [worksharing agreement], a plaintiff, by filing

charges with the EEOC, thereby commences proceedings with both the [state

agency] and the EEOC.”); Bolinsky, 69 F. Supp. 2d at 847 (“[B]ecause the

plaintiff’s filing with the EEOC automatically commenced and terminated the state

proceedings on his charge, his filing with the EEOC was a sufficient exhaustion of

his state law remedies.”).


                                          8
      The agreement’s language also would determine whether the FCHR

constructively terminated Maynard’s filing. See, e.g., Griffin v. Air Prod. &

Chems., Inc., 883 F.2d 940, 943 (11th Cir. 1989) (examining an earlier version of

the EEOC-FCHR worksharing agreement, and determining that “the EEOC-FCHR

worksharing agreement created an instantaneous ‘constructive termination’” of the

FCHR proceedings); Puryear, 214 F.3d at 518 n.4 (finding that the state agency

constructively terminated a charge that was filed with the EEOC where “the EEOC

forwards the charge to the [Virginia Council on Human Rights] in any event,

pursuant to the [worksharing agreement].”); Griffin v. City of Dallas, 26 F.3d 610,

613 (5th Cir. 1994) (reviewing the Texas Commission on Human Rights -EEOC

worksharing agreement, and determining that pursuant to that agreement “the state

proceedings were instantaneously terminated upon [the complainant’s] filing of his

charge with the EEOC.”). Since the outcome of our query hinges on the language

in the EEOC-FCHR agreement, we begin our analysis by scrutinizing the

agreement for fiscal year 1997, the governing agreement when charges were filed.

      Unfortunately, neither party to this appeal made the crucial EEOC-FCHR

worksharing agreement a part of the record. Maynard could only demonstrate

timely filing if he showed that the EEOC-FCHR worksharing agreement provides

that the EEOC is the FCHR’s agent for purposes of receiving complaints, and that


                                         9
the FCHR constructively terminates its proceedings when the EEOC receives a

charge filed during the deferral period. As stated earlier, an ADA plaintiff bears

the burden of proving that he timely filed his charge with the EEOC; Maynard did

not sustain this burden of proof, as he failed to enter the necessary EEOC-FCHR

worksharing agreement into the record. Therefore, the district court appropriately

granted judgment as a matter of law in Pneumatic’s favor.

                                III. CONCLUSION

      Our prior opinion is vacated in its entirety and we limit our holding in this

case to deciding that Donald Maynard failed to prove that he timely filed his EEOC

charge. Accordingly, we affirm the district court’s grant of judgment as a matter of

law to Pneumatic Products Corporation. Because we conclude that the lack of

timely filing is a sufficient basis upon which to affirm the district court’s decision,

we need not address any alternative basis for the grant.

AFFIRMED.




                                           10
B. FLETCHER, Circuit Judge, dissenting:

      I respectfully dissent. Under the terms of the Worksharing Agreement

(agreement) between the Equal Employment Opportunity Commission (EEOC)

and the Florida Commission on Human Relations (FCHR), Donald Maynard

timely filed his discrimination complaint against his former employer, Pneumatic

Products Corporation. At trial, Maynard made out his prima facie case. For these

reasons, I would reverse the district court’s grant of judgment as a matter of law to

Pneumatic Products and remand.

A. Timeliness

      As the majority makes clear, whether Maynard timely filed his

discrimination charge depends upon the terms of the Worksharing Agreement

between the EEOC and the FCHR. The majority upholds the district court’s

judgment as a matter of law to Pneumatic Products because neither party made the

agreement part of the record. The agreement creates rules of law that prescribe the

circumstances under which filing with one agency constitutes filing with the other.

Thus, the fact that the agreement was not entered into the record is irrelevant; it is

the district court’s duty to identify and interpret the sources of law necessary for

deciding the case before it.




                                          11
      It is clear, however, that even if the agreement is an adjudicative fact rather

than law, it is the sort of thing of which the district court could have taken judicial

notice. See Fed. R. Evid. 201(b) (“A judicially noticed fact must be one not

subject to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned.”). Although judicial notice is not mandatory unless it is requested by a

party who supplies the court with the necessary information, a court’s failure to

take judicial notice may constitute an abuse of discretion even when no party

requests such notice. See id. 201(c), (d). In this case, whether Maynard’s charges

were timely filed depends entirely on the language of the agreement, a document

that is readily available either from the FCHR or from the Florida divisions of the

EEOC. I would hold that, assuming that the agreement is an adjudicative fact, the

district court’s failure to take judicial notice of the agreement was an abuse of

discretion.

      Turning to the merits of Maynard’s appeal, it is clear from the agreement

that the EEOC’s receipt of a complainant’s charges automatically initiates

proceedings of both the EEOC and the FCHR. Paragraph II.A. of the agreement

states that each agency designates the other “as its agent for the purpose of


                                           12
receiving and drafting charges.” FCHR-EEOC Worksharing Agreement for Fiscal

Year 1997 ¶ II.A. (emphasis added). That paragraph also explicitly states that

“EEOC’s receipt of charges on the FEPA’s [1] behalf will automatically initiate the

proceedings of both EEOC and the FEPA.” Id. ¶ II.A. (emphasis added). The

agreement also conclusively establishes that Maynard’s filing with the EEOC not

only automatically initiated proceedings with the FCHR, but also instantaneously

constructively terminated the FCHR proceedings. Paragraph III.A.1. of the

agreement states that “[f]or charges originally received by the EEOC and/or to be

initially processed by the EEOC, the FEPA waives its right of exclusive

jurisdiction to initially process such charges for a period of 60 days for the purpose

of allowing the EEOC to proceed immediately with the processing of such charges

before the 61st day.” Id. ¶ III.A.I. This Court has held that virtually identical

language in a previous Worksharing Agreement between the EEOC and the FCHR

“created an instantaneous ‘constructive termination’” of FCHR proceedings.

Griffin v. Air Prods. & Chems., Inc., 883 F.2d 940, 943 (11th Cir. 1989).

      Here, the EEOC received Maynard’s charges within the 300 day limit.

FCHR proceedings were automatically initiated and terminated concurrent with

Maynard’s filing. The EEOC properly considered Maynard’s filing timely; it


      1
             The FCHR refers to itself as “FEPA” in the agreement.

                                            13
accepted jurisdiction and issued a right-to-sue letter. I would reverse the district

court’s conclusion that Maynard had failed to establish timely filing.

B. Prima Facie Case

      In our prior opinion, we affirmed the district court’s judgment to Pneumatic

Products on the ground that Maynard had failed to make out a prima facie case of

discrimination in violation of the ADA. Maynard v. Pneumatic Prods. Corp., 233

F.3d 1344 (11th Cir. 2000). In doing so, we erred.

      In order to determine whether a person is disabled within the meaning of the

ADA, we must decide three issues: (1) whether the person has a physical

impairment, (2) whether the activities the person claims are substantially limited by

the impairment are “major life activit[ies],” and (3) whether the impairment

actually does substantially limit any major life activities. Bragdon v. Abbott, 524

U.S. 624, 631 (1998).

      In 1994, Maynard suffered a herniated disc in his back while at work. By

March of 1996, as a result of the herniated disk, Maynard could not lift more than

fourteen pounds, sleep well, sit in a chair for more than fifteen to twenty minutes at

a time, stand for more than fifteen minutes at a time, bend at the waist, run up

steps, or walk more than forty or fifty yards at a time. Previously, we held that

Maynard failed to establish his prima facie case because he failed to present


                                          14
evidence of how far the average person in the population can walk. Maynard, 233

F.3d at 1347–48. That conclusion was simply wrong. Although Maynard offered

no proof of how far the average person in the general population can walk, his

impairment is so obviously substantially limiting that he needed to present no

comparator evidence as part of his prima facie case. The jury’s good common

sense and life experiences gave them sufficient ability to determine that Maynard’s

impairment “[s]ignificantly restrict[s]. . . the condition, manner or duration under

which [he] 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.” 29 C.F.R. § 1630.2(j)(1)(ii).

      Maynard timely filed his charges with the EEOC and the FCHR. At trial, he

made out his prima facie case of discrimination in violation of the ADA.

Therefore, I would reverse the district court’s grant of judgment as a matter of law

to Pneumatic Products and remand for retrial. Accordingly, I dissent.




                                          15
