                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 02-1057
                                 ___________

Shameika L. Gilmore,                   *
                                       *         On Appeal from the
            Appellant,                 *         United States District Court
                                       *         for the Eastern District
      v.                               *         of Missouri.
                                       *
AT&T,                                  *
                                       *
            Appellee                   *
                                 ___________

                         Submitted: November 7, 2002
                         Filed: February 21, 2003
                                  ___________

Before MURPHY, MELLOY, Circuit Judges, and FRANK,1 District Judge.
                          ___________

FRANK, District Judge.

    Appellant Shameika Gilmore appeals the District Court’s2 order granting
AT&T, her former employer, summary judgment on her claims of racial




      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, sitting by designation.
      2
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
discrimination and disability discrimination.3 For the reasons set forth below, we
affirm.

I.     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” (i.e., 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 3, 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



      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.
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matters at the call center. At the time Gilmore was terminated, her immediate
supervisor was Team Leader Wendy Lamotta.

       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 Lamotta 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 Gilmore and further informed Gilmore that
she needed either to leave work or to be on-line answering calls. In addition, Lamotta
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.

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        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.

                                         -4-
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.

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, 665 (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. 56(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

                                         -5-
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 (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.

       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

                                         -6-
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. As AT&T provided a legitimate, non-discriminatory
reason for Gilmore’s termination, and Gilmore provided no evidence to support a
finding of pretext, Gilmore’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

                                          -7-
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).

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



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