Shameika L. Gilmore v. At & T, 319 F.3d 1042 (8th Cir. 2003). · Go Syfert
Shameika L. Gilmore v. At & T, 319 F.3d 1042 (8th Cir. 2003). Cases Citing This Book View Copy Cite
“three other individuals are not similarly situated because did not establish th.at the circumstances of their misconduct were comparable in'severity or frequency to infractions.”
98 citation events (98 in the last 25 years) across 15 distinct courts.
Strongest positive: Hart v. Deere & Company (iand, 2023-10-11)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) Hart v. Deere & Company
N.D. Iowa · 2023 · quote attribution · 1 verbatim quote · confidence high
three other individuals are not similarly situated because did not establish that the circumstances of their misconduct were comparable in severity or frequency to infractions.
discussed Cited as authority (verbatim quote) Holston v. The City of Hope, Arkansas
W.D. Ark. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
three other individuals are not similarly situated because did not establish that the circumstances of their misconduct were comparable in severity or frequency to infractions.
discussed Cited as authority (verbatim quote) Moss v. Texarkana Arkansas School District
W.D. Ark. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
three other individuals are not similarly situated because did not establish th.at the circumstances of their misconduct were comparable in'severity or frequency to infractions.
discussed Cited as authority (rule) Jason Schmit v. Trimac Transportation, Inc.
8th Cir. · 2026 · confidence medium
Schmit is only “qualified” if he: “(1) meets the necessary prerequisites for the job, such as education, experience, and training; and (2) can perform [his] essential job functions, -6- with or without reasonable accommodation.” Gilmore v. AT & T, 319 F.3d 1042, 1047 (8th Cir. 2003).
discussed Cited as authority (rule) Hassan v. Amazon.com Services, LLC
D. Minnesota · 2025 · confidence medium
The only evidence Mr. Hassan identifies relevant to the prima facie case’s fourth element is his comparator evidence.14 To survive summary judgment on this disparate-treatment theory, Mr. Hassan must identify at least one other employee who was “similarly situated in all relevant aspects.” Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000); Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005). “[I]ndividuals used as comparators ‘must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distingui…
discussed Cited as authority (rule) Stevie Whitehorn v. Maverick Tube Corporation
8th Cir. · 2024 · confidence medium
“If the defendant does so, the burden shifts back to the plaintiff to establish that the proffered non-discriminatory reason is pretextual,” id. at 427-28 , such as by showing that his employer’s explanation of the firing was false, see Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1003 (8th Cir. 2012), or that “similarly situated employees who are not members of the protected group were treated differently,” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003). 1 The Honorable D.
discussed Cited as authority (rule) Fielding v. Allina Health System
D. Minnesota · 2023 · confidence medium
“The individuals used as comparators must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003) (internal quotation and citation omitted).
discussed Cited as authority (rule) Lewis v. Southwestern Bell Telephone Company
W.D. Mo. · 2022 · confidence medium
The similarly situated employee “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
discussed Cited as authority (rule) Thomas v. Wells Fargo Bank, N.A.
D. Minnesota · 2022 · confidence medium
Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000); Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005). “[I]ndividuals used as comparators ‘must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir. 2005) (quoting Clark, 218 F.3d at 918 ).
discussed Cited as authority (rule) Said v. Mayo Clinic
D. Minnesota · 2021 · confidence medium
To survive summary judgment on this theory, Dr. Said must identify at least one other employee who was “similarly situated in all relevant aspects.” Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000); Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005). “[I]ndividuals used as comparators ‘must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir. 2005) (quoting Clark, 218 F.3d at 918 ). “[V]iolations treated differ…
discussed Cited as authority (rule) Horn v. United States Department of Health and Human Services
D.S.D. · 2021 · confidence medium
HHS, Doc. 47 at 3, contends “[t]he individual used as comparators must have dealt with 15 the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances,” citing Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir. 2003) (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).
discussed Cited as authority (rule) Chowdada v. Judge Technical Services, Inc
E.D. Mo. · 2021 · confidence medium
The Court notes that Plaintiff’s response simply restates previously made assertions without proper citation to admissible evidence or relevant precedent. 5 413 F.3d 766, 768 (8th Cir. 2005) (citing Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003)); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).4 If Plaintiff can make such a prima facie case, the burden shifts to JTS to establish a legitimate, non- discriminatory reason for the adverse employment action.
discussed Cited as authority (rule) Maxwell/G-Doffee v. Wooten
E.D. Ark. · 2020 · confidence medium
In that context, the Eighth Circuit has instructed that a plaintiff has the burden to present “specific, tangible evidence” that employees who were similarly situated in all respects” to him received different treatment.” Rose–Maston v. NME Hosp., Inc., 133 F.3d 1104 , 1109 n. 4 (8th Cir.1998) (first quote); Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2002) (second quote).
discussed Cited as authority (rule) Clayton v. DeJoy
E.D. Mo. · 2020 · confidence medium
Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005) (citing Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003)); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).11 If Plaintiff can make such a prima facie case, the burden shifts to USPS to establish a legitimate, non-discriminatory reason for the adverse employment action.
discussed Cited as authority (rule) Claborn-Welch v. Perdue
W.D. Mo. · 2020 · confidence medium
A comparator typically “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
cited Cited as authority (rule) Hoaglin v. Hyvee Market
W.D. Mo. · 2019 · confidence medium
Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
discussed Cited as authority (rule) Sampson v. City of Fort Smith
W.D. Ark. · 2017 · confidence medium
To the extent he relies on differently-treated comparators, Officer Sampson “bears the burden to demonstrate by a preponderance of the evidence that there were individuals similarly situated.” Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir. 2003) (citing Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).
cited Cited as authority (rule) Smith v. Mayo Clinic
D. Minnesota · 2016 · confidence medium
Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
discussed Cited as authority (rule) Mudrich v. Wal-Mart Stores, Inc.
D. Minnesota · 2013 · signal: cf. · confidence medium
Cf. Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003) (finding a comparator “was not similarly situated because his discipline was not administered by the same supervisors who administered [plaintiffs] discipline”); see also Jackson v. City of St.
cited Cited as authority (rule) Chappell v. Bilco Co.
8th Cir. · 2012 · confidence medium
This standard was purportedly narrowed in 2003 to “similarly situated in all respects.” Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir. 2003).
discussed Cited as authority (rule) Lee v. K Mart Corp. (2×) also: Cited "see"
D. Minnesota · 2011 · confidence medium
“To satisfy this standard, ‘[t]he individuals used as comparators “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” ’ ” Id. (quoting Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003)); see also Chism v. Curtner, 619 F.3d 979, 984 (8th Cir.2010) (“When different decision-makers are involved in terminating employees, the employees are rarely similarly situated in all relevant aspects.”).
discussed Cited as authority (rule) Mutua v. TEXAS ROADHOUSE MANAGEMENT CORP.
D.S.D. · 2010 · confidence medium
Mutua Has Alleged Insufficient Facts to Prove That Indirect Evidence Supports a Disparate Treatment Claim Mutua can also show disparate treatment under the McDonnell Douglas burden-shifting analysis by making a four-part showing: "(1) [s]he is a member of a protected class; (2) [s]he met the legitimate expectations of [her] employer; (3) [s]he suffered an adverse employment action; and (4) similarly situated employees that were not members of the protected class were treated differently." Philip, 413 F.3d at 768 (citing Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003)).
discussed Cited as authority (rule) Lopez v. ALROD ENTERPRISES, INC.
E.D. Pa. · 2009 · confidence medium
See Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir.2008) (requiring them to be "similar in all of the relevant aspects”); Sartor v. Spherion Corp., 388 F.3d 275, 279 (7th Cir. 2004) (requiring them to be “directly comparable in all material respects”); Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003) (requiring them to be "similarly situated in all respects”); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000) (requiring them to be "similarly situated in all material respects”); Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996…
cited Cited as authority (rule) Viola Fair v. Larry Norris
8th Cir. · 2007 · confidence medium
Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
cited Cited as authority (rule) Fair v. Norris
8th Cir. · 2007 · confidence medium
Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003). 3 Fair graduated from the University of Arkansas at Pine Bluff in 1995, with a bachelor's degree in criminal justice.
examined Cited as authority (rule) Brasch v. Peters (3×)
E.D. Mo. · 2007 · confidence medium
Rose-Maston v. NME Hosp., Inc., 133 F.3d 1104 , 1109 n. 4 (8th Cir.1998) (first quote); Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.) (second quote), cert. denied, 540 U.S. 955 , 124 S.Ct. 405 , 157 L.Ed.2d 291 (2003).
discussed Cited as authority (rule) Shirdena M. Twymon v. Wells Fargo & Company, Doing Business as Wells Fargo Home Mortgage, Inc.
8th Cir. · 2006 · confidence medium
"We review 'the record in the light most favorable to the nonmoving party,’ " Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir.2005) (quoting Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003)), "drawing all reasonable inferences, without resort to speculation, in favor of the non-moving party." Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir.2005). 3 .
discussed Cited as authority (rule) Shirdena M. Twymon v. Wells Fargo & Co.
8th Cir. · 2006 · confidence medium
“We review ‘the record in the light most favorable to the nonmoving party,’” Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005) (quoting Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003)),“drawing all reasonable inferences, without resort to speculation, in favor of the non-moving party.” Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005). -2- and complained, generally, about Twymon’s excessive personal computer and Internet use.
cited Cited as authority (rule) Lavada Z. Box v. Anthony J. Principi
8th Cir. · 2006 · confidence medium
Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
cited Cited as authority (rule) Lavada A. Box v. Anthony J. Principi, Secretary of Department of Veterans Affairs Department of Veterans Affairs
8th Cir. · 2006 · confidence medium
Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
discussed Cited as authority (rule) Twymon v. Wells Fargo & Co.
S.D. Iowa · 2005 · confidence medium
Twymon must also “proffer ‘specific, tangible evidence’ that employees who were ‘similarly situated in all respects’ to [her] received différent treatment from [her employer].” Philip, 413 F.3d at 768 (quoting Rose-Maston v. NME Hosp., Inc., 133 F.3d 1104, 1109, n. 4 (8th Cir.1998); Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003)).
cited Cited as authority (rule) Davis v. KARK-TV, Inc.
8th Cir. · 2005 · confidence medium
We review the evidence and the inferences that reasonably may be drawn from the evidence in “the light most favorable to the nonmoving party.” Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
discussed Cited as authority (rule) Davis v. Kark-Tv, Inc.
8th Cir. · 2005 · confidence medium
We review the evidence and the inferences that reasonably may be drawn from the evidence in "the light most favorable to the nonmoving party." Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003). 11 We analyze Title VII disparate treatment claims, § 1981 claims, and ACRA claims in the same manner.
examined Cited as authority (rule) Carla Rodgers v. U.S. Bank, N.A. (6×) also: Cited "see"
8th Cir. · 2005 · confidence medium
The district court applied a standard articulated in Gilmore v. AT & T, requiring that Rodgers and Nichols be “similarly situated in all respects.” 319 F.3d 1042, 1046 (8th Cir.2003) (citing Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000)).
examined Cited as authority (rule) Carla Rodgers v. U.S. Bank (3×) also: Cited "see"
8th Cir. · 2005 · confidence medium
The district court applied a standard articulated in Gilmore v. AT&T, requiring that Rodgers and Nichols be “similarly situated in all respects.” 319 F.3d 1042, 1046 (8th Cir. 2003) (citing Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).
discussed Cited as authority (rule) George D. Philip v. Ford Motor Company (2×)
8th Cir. · 2005 · confidence medium
We review “the record in the light most favorable to the nonmoving party.” Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
examined Cited as authority (rule) George D. Philip v. Ford Motor Company, a Delaware Corporation (4×)
8th Cir. · 2005 · confidence medium
We review “the record in the light most favorable to the nonmoving party.” Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
discussed Cited as authority (rule) Davidson v. Tyco/Healthcare, Mallinckrodt, Inc.
E.D. Mo. · 2005 · confidence medium
Tolen, at 882-83; Cherry v. Ritenour School District, 361 F.3d 474, 479 (8th Cir.2004); Marquez v. Bridgestone/Firestone, Inc., 353 F.3d 1037, 1038 (8th Cir.2004); Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
discussed Cited as authority (rule) Eric T. Tolen v. John Ashcroft
8th Cir. · 2004 · confidence medium
To be similarly situated, the comparable employees “ ‘must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.’ ” Gilmore *883 v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003) (quoting Clark, 218 F.3d at 918 ).
discussed Cited as authority (rule) ERIC T. TOLEN, — v. JOHN ASHCROFT, ATTORNEY GENERAL FOR THE DEPARTMENT OF JUSTICE, —
8th Cir. · 2004 · confidence medium
To be similarly situated, the comparable employees "`must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.'" Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003) (quoting Clark, 218 F.3d at 918 ). 6 To demonstrate that he was treated more harshly, Tolen asserts that his offered comparables were accused of committing serious violations while he was accused of relatively minor infractions.
discussed Cited "see" Deborah Lightner v. Catalent CTS (Kansas City)
8th Cir. · 2023 · signal: see · confidence high
See Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir. 2003) (noting certain other employees are not -5- similarly situated when the plaintiff “did not establish that the circumstances of their misconduct were comparable in severity or frequency to [the plaintiff’s] infractions.”).
cited Cited "see" McConnell v. Mayorkas
W.D. Ark. · 2023 · signal: see · confidence high
See Gilmore v. AT&T, 319 F.3d 1042, 1046 (8th Cir. 2003).
discussed Cited "see" Walker v. Missouri Department of Corrections
W.D. Mo. · 2022 · signal: see · confidence high
See Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir. 2003) (“The individuals used as comparators must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” (quotation marks and citation omitted)); Fields v. Shelter Mut.
cited Cited "see" Mary Doucette v. Morrison County, Minnesota
8th Cir. · 2014 · signal: see · confidence high
See Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
discussed Cited "see" Bearden v. International Paper Co.
E.D. Ark. · 2007 · signal: see · confidence high
See Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003) (comparator “was not similarly situated because his discipline was not administered by the same supervisors who administered [plaintiffs] discipline”).
discussed Cited "see" Juan Bass v. SBC Communications
8th Cir. · 2005 · signal: see · confidence high
See Gilmore v. AT&T, 319 F.3d 1042, 1047 (8th Cir. 2003) (an ADA "plaintiff who has sworn to his inability to work must 'reconcile [these] seemingly contradictory statements'").
cited Cited "see" Juan Bass v. Sbc Communications, Inc., and Participating Companies
8th Cir. · 2005 · signal: see · confidence high
See Gilmore v. AT & T, 319 F.3d 1042, 1047 (8th Cir.2003) (an ADA “plaintiff who has sworn to his inability to work must ‘reconcile [these] seemingly contradictory statements’ ”).
discussed Cited "see" Swanson v. Medical Action Industries, Inc.
W.D.N.C. · 2004 · signal: accord · confidence high
Devine v. Bd. of Comm’rs of Elkhart County, 49 Fed.Appx. 57, 61-62 (7th Cir.2002) (citing Lee, supra, at 677 ); accord, Gilmore v. AT & T, 319 F.3d 1042 , 1047 *501 (8th Cir.), cert. denied, 540 U.S. 955 , 124 S.Ct. 405 , 157 L.Ed.2d 291 (2003) (“In her Social Security benefits application and in her deposition testimony, Gilmore conceded that she could not perform the essential functions of her job[.] ...
cited Cited "see" Robin C. McDermott v. Thomas Dean Royal
8th Cir. · 2004 · signal: see · confidence high
See Gilmore v. AT & T, 319 F.3d 1042, 1046 (8th Cir.2003).
discussed Cited "see" Crockett v. Counseling Services of Eastern Arkansas, Inc.
Ark. Ct. App. · 2004 · signal: see · confidence high
See Gilmore v. AT & T, 319 F.3d 1042 (8th Cir. 2002) (persons used as comparators were not considered similarly situated because some were of the same protected class and others committed acts that were not comparable in severity or frequency); Williams v. Saint Luke’s-Shawnee Mission Health System, Inc., 276 F.3d (8th Cir. 2001) (court rejected similarly-situated claim where the accusations made against the plaintiff were more serious and more numerous than the offenses of the other employees).
Retrieving the full opinion text from the archive…
Shameika L. GILMORE, Appellant,
v.
AT & T, Appellee
02-1057.
Court of Appeals for the Eighth Circuit.
Apr 9, 2003.
319 F.3d 1042
Lyell H. Champagne, argued, St. Louis, MO, for appellant., Timothy C. Mooney, argued, St. Louis, MO, for appellee.
Murphy, Melloy, Frank.
Cited by 63 opinions  |  Published
[*1044] FRANK, District Judge.

Appellant Shameika Gilmore appeals the District Court’s [2] order granting AT & T, her former employer, summary judgment on her claims of racial discrimination and disability discrimination. [3] For the reasons set forth below, we affirm.

1. Background

Appellant Shameika Gilmore (“Gilmore”), an African-American woman, worked as a customer service representative at AT & T’s National Telemarketing Center in St. Louis, Missouri, from October 22, 1998, through June 3,1999. In her position at the call center, Gilmore handled inbound calls from current and potential residential customers.

Customer service representatives were paid hourly based upon the time that they were clocked-in to work, notwithstanding the amount of time that the customer service representative was “on-line” (ie., handling customer phone calls). AT & T’s Code of Conduct, with which Gilmore admittedly was familiar, stated that a customer service representative was expected to be on-line while clocked-in to work, unless that customer service representative was on a limited or scheduled break. A customer service representative who was off-line without management authorization or who was not on a scheduled break was considered to be misusing company time in violation of the Code of Conduct. Violations of the Code of Conduct were considered grounds for discipline, including termination.

Gilmore’s termination occurred on June 8, 1999, after a series of attendance violations. When these attendance violations occurred, Mike Chapman and Jeff Robinson were responsible for handling attendance issues and related disciplinary matters at the call center. At the time Gilmore was terminated, her immediate supervisor was Team Leader Wendy La-motta.

Gilmore’s first absence from work occurred on November 25, 1998. Gilmore received a letter of warning for that absence that was later rescinded due to a change in the AT & T attendance policy. Gilmore was issued a letter of warning for her second absence that occurred on February 9, 1999. Gilmore missed work again from March 30, 1999, through April 2, 1999, for which she was issued a final warning. In the final warning, Gilmore was notified that any further absences could result in her termination.

On June 2,1999, Gilmore spent a portion of the morning off-line complaining of severe physical pain. When notified of Gilmore’s illness, Wendy Lamotta met with Gilmore to discuss the nature of her problem. At that time, Gilmore stated that she was suffering from stomach pain, but expressed concern that if she left the office, her absence would result in another attendance violation and her termination. Gilmore requested assurance from Lamot-ta that if she left, she would not be terminated for her absence. Lamotta met with Mike Chapman to discuss the disciplinary consequences if Gilmore were indeed to leave. Chapman stated that he would review the circumstances of the matter to determine whether disciplinary action would be necessary, but that he could not guarantee that no action would be taken. Lamotta related this information to Gil[*1045] more and further informed Gilmore that she needed either to leave work or to be on-line answering calls. In addition, La-motta suggested that Gilmore call an ambulance. Gilmore declined to leave work.

Later that day, Lamotta and her fellow team leader, Mindy McFarland, monitored Gilmore’s calls. Lamotta and McFarland observed that Gilmore spent much of the afternoon placing customers on hold for extended periods of time or telling customers about her physical problems. Ultimately, Gilmore was off-line for approximately 128 minutes that day.

Gilmore returned to work on June 3, 1999. Lamotta was on vacation that day, so Chapman and McFarland met with Gilmore to determine why Gilmore had been off-line for more than two hours on the previous day. Gilmore admitted that she had been off-line, but said that she remained clocked-in to avoid another attendance violation and to avoid the risk of termination. After discussing the matter privately with Chapman, McFarland notified Gilmore that she was terminated effective immediately because of her misuse of company time. Gilmore gathered her personal belongings and, as she was leaving the building, fell down approximately seven stairs.

After her termination, Gilmore filed formal grievances for workers’ compensation and with her union. Ultimately, AT & T representatives and union officials came to an agreement under which AT & T would re-characterize Gilmore’s termination as a suspension without pay and Gilmore would return to work as soon as she was cleared by her doctor after receiving treatment for injuries suffered as a result of her fall. However, even after being cleared to return to work by her doctor on August 5, 1999, Gilmore failed to do so. As a result, in late August 1999, AT & T withdrew its offer to reinstate Gilmore. Gilmore later asserted in her application for Social Security disability benefits and in deposition testimony that in August 1999, she was not physically capable of performing the essential functions of her job with or without reasonable accommodations.

Gilmore filed this lawsuit, alleging, among other things, that her termination was based upon her race and disability, in violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (“ADA”). AT & T moved for summary judgment on all of the claims raised in Gilmore’s complaint. Relevant to the issues here on appeal, AT & T asserted that Gilmore had not demonstrated that she was discriminated upon based on her race. Further, AT & T asserted that Gilmore had not established a prima facie case of disability discrimination because she conceded that she could not perform her job functions at AT & T even with an accommodation. The district court granted AT & T’s motion for summary judgment on all of the claims, and Gilmore appealed the outcome of her race discrimination and disability discrimination claims.

Gilmore argues on appeal that summary judgment should not have been granted on her racial discrimination claim because she was terminated based upon her race. Specifically, Gilmore asserts that the district court ignored her evidence that white employees with similar attendance issues as hers had not been terminated by AT & T. In addition, Gilmore contends that her disability discrimination claim should not have been dismissed because AT & T withdrew its reinstatement offer because of her alleged disability. Gilmore asserts that any statements that she made as to her inability to perform her job functions, even with a reasonable accommodation, were conclusions that she made only because she lacked legal training.

[*1046] II. Discussion

A. Standard of Review

We review de novo a grant of summary-judgment, applying the same standard as the district court and viewing the record in the light most favorable to the nonmoving party. Barrera v. Con Agra, Inc., 244 F.3d 663, 666 (8th Cir.2001). Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 66(c).

B. Racial Discrimination

Gilmore alleges that the district court erred by granting summary judgment to AT & T on her claim of racial discrimination. To establish a prima facie case of racial discrimination, a plaintiff must show that: (1) she was a member of a protected group; (2) she was meeting the legitimate expectations of her employer; (3) she suffered an adverse employment action; and (4) similarly situated employees who are not members of the protected group were treated differently. See Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000). Specifically, under the final prong of this test, Gilmore bears the burden to demonstrate by a preponderance of the evidence that there were individuals similarly situated in all respects to her who were treated differently. Id. The individuals used as comparators “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Id. Once this prima facie case is established, the burden shifts to the employer to provide a legitimate reason for the adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Then, the burden shifts back to the employee to demonstrate that the reason articulated by the employer was a pretext. See id. at 804, 93 S.Ct. 1817.

Our review of the record supports the district court’s conclusion that Gilmore failed to establish a prima facie case of racial discrimination. Specifically, Gilmore has not demonstrated that the eight individuals that she identified as comparators are similarly situated to her. Three of the individuals to which Gilmore compares herself are members of the same protected group as Gilmore. Three other individuals are not similarly situated because Gilmore did not establish that the circumstances of their misconduct were comparable in severity or frequency to Gilmore’s infractions. Finally, one of the individuals was not similarly situated because the supervisor who administered her discipline was not identified; another individual was not similarly situated because his discipline was not administered by the same supervisors who administered Gilmore’s discipline. Thus, based upon Gilmore’s failure to provide any evidence that similarly situated employees who were not in the same protected class were treated differently, summary judgment was appropriately granted.

Furthermore, the district court properly recognized that even if Gilmore had established a prima facie case of racial discrimination, AT & T provided a legitimate reason for the employment decision to terminate Gilmore. The record supports AT & T’s assertion that Gilmore’s termination was due to her misuse of company time. Gilmore then failed to set forth any evidence to support her assertion that the proffered reason for her termination was pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. at 804, 93 S.Ct. 1817. As AT & T provided a legitimate, non-discriminatory reason for Gilmore’s termination, and Gilmore provided no evidence to support a finding of pretext, Gil[*1047] more’s racial discrimination claims were properly dismissed.

C. Disability Discrimination

Gilmore alleges that AT & T’s withdrawal of her reinstatement violated the ADA. To establish a prima facie case of disability discrimination, the plaintiff must demonstrate that she has a disability as defined by the ADA, that she was qualified with or without reasonable accommodation to perform the essential functions of her job, and that she suffered an adverse employment action because of her disability. Land v. Washington County, Minnesota, 243 F.3d 1093, 1095 (8th Cir.2001). A plaintiff is only “qualified” if the individual: (1) meets the necessary prerequisites for the job, such as education, experience, and training; and (2) can perform the essential job functions, with or without reasonable accommodation. Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir.2000).

Like the district court, we conclude that Gilmore failed to show that she is a qualified individual under the ADA. In her Social Security benefits application and in her deposition testimony, Gilmore conceded that she could not perform the essential functions of her job, even with reasonable accommodation, in August 1999. As recognized by the district court, while statements made to the Social Security Administration to secure disability benefits do not automatically preclude a successful suit under the ADA, a plaintiff who has sworn to his inability to work must “reconcile [these] seemingly contradictory statements.” Lane v. BFI Waste Sys. of North America, 257 F.3d 766, 769-70 (8th Cir.2001). Gilmore has neither claimed that her statements were inaccurate, nor has she provided any evidence to reconcile her asserted inability to perform the essential functions of her job with her claim under the ADA. On this basis, the district court properly concluded that Gilmore was not a qualified individual under the ADA and thus that summary judgment on Gilmore’s disability discrimination claim was appropriate.

In addition, the district court properly concluded that Gilmore failed to prove that AT & T’s non-discriminatory reason for withdrawing her reinstatement was a pretext for disability discrimination. Admittedly, Gilmore failed to return to work after she was cleared by her doctor to do so. Gilmore asserts that she was not fully recovered and was unable to work when she received such clearance and further asserts that she did not understand the agreement between AT & T management and her union. However, these unsupported assertions do not render AT & T’s decision not to reinstate her pretextual. Thus, the district court properly granted AT & T’s motion for summary judgment on Gilmore’s disability discrimination claim.

III. Conclusion

In accordance with the foregoing, we affirm the district court’s judgment in favor of AT & T. In addition, we grant AT & T’s motion to strike portions of the AT & T Code of Conduct and excerpts from the deposition of Dr. Joseph Hanaway that were included with Gilmore’s appellate brief, as they were not set forth in the record before the district court. See Fed. R.App. P. 10(a); see also Rivers-Frison v. Southeast Mo. Community Treatment Ctr., 133 F.3d 616, 619 n. 2 (8th Cir.1998).

2

. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.

3

. The District Court's order granted summary judgment in favor of AT & T on additional claims of religious discrimination, retaliatory discharge, and hostile work environment. Gilmore has only appealed on the basis of the racial discrimination and disability discrimination claims.