United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 ___________

 No. 97-1398

 ___________

Eunice Greaser, *

*

Plaintiff/Appellant, *

*

v. *

*

State of Missouri, Department of *

Corrections; Dora Schriro; George *

Lombardi; Sarah Schuette; Gerald *

Higgins; Kelly Lock; Michael Groose; * Appeals from the United States

Vernon Heath; Lawrence Bax; Cecil R. * District Court for the

Riley; James Cregger, Bill Keeth; * Western District of Missouri.

Robert Walling, *

*

Defendants/Appellees, *

*

Carl White, *

*

Defendant, *

*

Phillip Higgins, *

*

Defendant/Appellee. *

 ___________

 No. 97-1405

 ___________

Eunice Greaser, *

*

Plaintiff/Appellee, *
The HONORABLE MICHAEL J. DAVIS, United States District Judge for the 1

District of Minnesota, sitting by designation.

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*

v. *

*

State of Missouri, Department of *

Corrections; Dora Schriro; George *

Lombardi; Sarah Schuette; Gerald *

Higgins; Kelly Lock; Michael Groose; *

Vernon Heath; Lawrence Bax; Cecil R. *

Riley; James Cregger, Bill Keeth, *

*

Defendants/Appellants, *

*

Robert Walling, *

*

Defendant, *

*

Carl White; Phillip Higgins, *

*

Defendants/Appellants. *

___________

 Submitted: February 12, 1998

Filed: June 1, 1998

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Before WOLLMAN and HANSEN, Circuit Judges, and DAVIS, District Judge. 1

___________
The Honorable William A. Knox, United States Magistrate Judge for the

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Western District of Missouri, to whom the case was referred by consent of the parties

pursuant to 28 U.S.C. § 636(c).

Walling was apparently promoted to his previous rank approximately twenty

3

months after his demotion.

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WOLLMAN, Circuit Judge.

Eunice Greaser appeals from the judgment entered by the district court on the 2

jury’s verdict in favor of the Missouri Department of Corrections and various

individually named employees of the Department (hereinafter referred to collectively

as “the Department”) in her Title VII retaliation claim. The Department cross-appeals,

contending that the district court abused its discretion in denying costs pursuant to Fed.

R. Civ. P. 54(d). In addition, the Department moves for revocation of Greaser’s in

forma pauperis status. We affirm.

I.

Greaser began working for the Missouri Department of Corrections in 1980.

After serving as a correctional officer at the Renz Correctional Center for four years,

Greaser left to care for her seriously ill husband. She returned to employment with the

Department in 1986 as a correctional officer at the Central Missouri Correctional

Center.

In 1990, Greaser was subjected to inappropriate comments made by a coworker, Robert Walling. As a result of these comments, Greaser filed an internal

sexual harassment grievance against Walling. The Department investigated the

situation and, having found reason to believe Greaser’s allegation, demoted Walling

and transferred him to another correctional facility.3
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After filing the grievance against Walling, Greaser continued to work for the

Department until 1995. During that time, Greaser sought various promotional

opportunities within the Department. Although she was a candidate for approximately

thirty positions at twelve different correctional institutions and interviewed with

approximately seventy Department officials regarding these positions, Greaser was not

offered a promotion. As a result, Greaser began to suspect that various Department

officials were retaliating against her because of her 1990 grievance and Walling’s

subsequent demotion. This suspicion was also based on Greaser’s belief that she was

being mistreated by co-workers, supervisors, and Department officials.

In light of this perceived retaliation, Greaser initiated this claim alleging that the

Department had retaliated against her in violation of Title VII of the Civil Rights Act

of 1964. At trial, Greaser testified that she believed that she was denied promotions,

given unfavorable duty assignments, and belittled and ostracized by various fellow

employees and supervisors because of the grievance she had filed in 1990. The

Department offered testimony indicating that Greaser was denied promotions not for

retaliatory reasons but because she interviewed poorly. At the close of Greaser’s case

in chief, the district court entered judgment as a matter of law (JAML) in favor of in

favor of Dora Schriro and another of the individually named defendants. The case

against the other named defendants was submitted to the jury, which returned a verdict

in favor of each defendant. The district court denied Greaser’s motion for a new trial.

Shortly thereafter, the Department sought costs in the amount of $6,798.99. Greaser

objected to the Department’s bill of costs and requested that she be granted leave to

proceed in forma pauperis. The district court rejected the Department’s application

for costs and ordered that the parties each bear their own costs. In addition, the court

granted Greaser leave to proceed in forma pauperis.

On appeal, Greaser contends that the district court erred in denying her motion

for a new trial because: (1) the verdict was against the weight of the evidence; (2) the

instructions were erroneous; and (3) the verdicts were inconsistent. In addition, she
challenges the district court’s grant of JAML in favor of Dora Schriro. The Department

s denial of costs and seeking revocation of

Greaser’s status.

II.

her motion for a new trial. We review the denial of a motion for a new trial for abuse

 discretion. Buchholz v. Rockwell Int’l Corp. .

1997). A new trial is req

See , 961 F.2d 776, 780 (8th Cir. 1992). Moreover, we have recognized

ding should not form the basis for

setting is shown.” Buchholz

(quoting Greyhound Lines, Inc. v. Miller

A.

Greaser first contends that a new trial is necessary because the jury’s 

against the weight of the evidence. Where a motion for a new trial is based on such a

Keenan v. Computer Associates Int’l, Inc., 13 F.3d 1266, 1269 (8th Cir. 

Peterson ex rel. Peterson v. General Motors Corp. .

1990)).

 various individuals who interviewed Greaser testified that she was denie

promotions not because of any retaliatory motive but because she did not interview well.

individuals testified that Greaser appeared to lack self-confidence and ha

difficulty answering the most basic of questions in a satisfactory manner. Moreover, a
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harassment grievance filed by Greaser when they interviewed her or when they failed

to recommend her for promotion.

Greaser would have us disregard this testimony and rely instead on her

assurances to the jury that she interviewed well. She argues that the Department’s claim

that she interviewed poorly is entirely subjective and easy to manufacture. Thus, she

asserts that such testimony is inherently suspect and must be “closely scrutinized for

discriminatory abuse.” O’Connor v. Peru State College, 781 F.2d 632, 637-38 (8th Cir.

1986). The duty of close scrutiny was for the jury, however, and although the jury was

at liberty to disbelieve the testimony of Department officials, it was also entitled to find

that testimony credible, as it apparently did.

Similarly, Greaser’s other arguments are little more than an invitation to

determine the credibility of witnesses, which was again a task for the jury to perform.

See Manatt v. Union Pac. R.R. Co., 122 F.3d 514, 518 (8th Cir. 1997), cert. denied,

118 S. Ct. 697 (1998). We conclude that the jury’s verdict does not constitute a

miscarriage of justice and that the district court did not abuse its discretion in denying

the motion for a new trial.

B.

Greaser also asserts that she is entitled to a new trial because the district court

improperly instructed the jury. Jury instructions are a matter generally within the broad

discretion of the district court. See Ryther v. KARE 11, 108 F.3d 832, 845-46 (8th Cir.

1997) (en banc), cert. denied, 117 S. Ct. 2510 (1997). We will reverse only if the

instructions, when viewed in their entirety, contain “an error or errors that affected the

substantial rights of the parties.” Id. at 846 (quoting Hastings v. Boston Mut. Life Ins.

Co., 975 F.2d 506, 510 (8th Cir. 1992)). The instructions need not be technically

perfect or even a model of clarity. See id. Furthermore, the fact that a trial court erred

in giving or not giving a particular instruction to the jury does not automatically entitle
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a party to relief; the error must be prejudicial. See Stockmen’s Livestock Market, Inc.

v. Norwest Bank of Sioux City, N.A., 135 F.3d 1236, 1246 (8th Cir. 1998).

Greaser concedes that she made no objection to the instructions. Rule 51 of the

Federal Rules of Civil Procedure provides that “[n]o party may assign as error the

giving or the failure to give an instruction unless that party objects thereto before the

jury retires to consider its verdict, stating distinctly the matter objected to and the

grounds of the objection.” Fed. R. Civ. P. 51. The purpose of this rule “is to compel

litigants to afford the trial court an opportunity to cure [a] defective instruction and to

prevent litigants from ensuring a new trial in the event of an adverse verdict by covertly

relying on the error.” Dupre v. Fru-Con Engineering, Inc., 112 F.3d 329, 333 (8th Cir.

1997) (quoting Missouri Pac. R.R. v. Star City Gravel Co., 592 F.2d 455, 459 (8th Cir.

1979)). Thus, where no adequate objection is made to preserve a purported error in

instructions, we review for plain error only. Plain error review is “narrow and confined

to the exceptional case where error has seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” Ryther, 108 F.3d at 847 (quoting Des

Moines Bd. of Water Works Trustees v. Alvord, 706 F.2d 820, 824 (8th Cir. 1983)).

Having reviewed the challenged instructions, we conclude that no such error occurred

here. See Ryther, 108 F.3d at 847.

C.

Greaser also contends that she is entitled to a new trial because the jury rendered

inconsistent verdicts. The morning following trial, the district court held an unrecorded

telephone conference call during which the court apparently told the parties that certain

members of the jury had expressed sympathy for Greaser. Greaser claims that these

statements by members of the jury constitute a “special verdict” that is inconsistent with

the general verdict returned by the jury. No record of the conference call exists,

however, and thus we have no way to review this issue. See Schmid v. United Bhd. of

Carpenters & Joiners, 827 F.2d 384, 386 (8th Cir. 1987).
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III.

As her final point on appeal, Greaser challenges the district court’s grant of

JAML in favor of Dora Schriro. We review a district court’s grant of JAML de novo,

applying the same standard as that employed by the district court. See Manning v.

Metropolitan Life Ins. Co., Inc., 127 F.3d 686, 689 (8th Cir. 1997). We resolve all

doubts in favor of the nonmoving party and give that party the benefit of all reasonable

inferences. See Brown v. United Missouri Bank, N.A., 78 F.3d 382, 387 (8th Cir.

1996). “We will affirm a grant of JAML where the nonmoving party has presented

insufficient evidence to support a jury verdict in [her] favor.” Manning, 127 F.3d 689-

90.

To prevail on a retaliation claim under Title VII, a plaintiff must demonstrate that

she suffered an adverse employment action. “Although actions short of termination may

constitute an adverse employment action within the meaning of the statute, ‘not

everything that makes an employee unhappy is an actionable adverse action.’” Id. at

692 (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)).

“Otherwise, minor and even trivial employment actions that ‘an irritable, chip-on-theshoulder employee did not like would form the basis of a discrimination suit.’” Smart

v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) (quoting Williams v. BristolMyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). Rather, for an action to be

considered adverse, it must have had a materially adverse impact on the plaintiff’s

employment terms or conditions. See Ledergerber v. Stangler, 122 F.3d 1142, 1144

(8th Cir. 1997). 

We conclude that the evidence against Schriro fails as a matter of law to

demonstrate an adverse employment action. Greaser contends that Schriro, who

became director of the Central Missouri Corrections Center in 1993, improperly

handled grievances that Greaser filed in 1993, 1994, and 1995, and that Schriro’s

failure to do so constituted an adverse employment action. However, Greaser is unable
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to point to any evidence supporting this allegation. The evidence shows that Schriro

undertook to have the grievances investigated. Although Greaser takes issue with the

conclusions Schriro reached, she has produced no evidence indicating that Schriro’s

conclusions were tainted by some impermissible motive or ungrounded in fact.

Greaser contends that two separate statements made by Schriro evidence an

adverse employment action. First, Greaser alleges that when she approached Schriro

about the status of her grievances, Schriro (apparently believing that Greaser was near

tears) asked Greaser if she would like a facial tissue. Greaser interpreted this statement

as a sarcastic barb regarding Greaser’s propensity to complain. Second, Greaser

contends that Schriro at one point told her she might want to resign “before someone

gets hurt.”

We conclude that these two statements do not rise to the level of adverse

employment action. Greaser does not allege that Schriro played any role in denying her

promotional opportunities or in denying her any incident of employment. Likewise,

Greaser failed to produce any evidence indicating that the statements were even

remotely linked to Greaser’s 1990 grievance against Walling.

IV.

On cross-appeal, the Department argues that the district court abused its

discretion in denying costs pursuant to Fed. R. Civ. P. 54(d), which provides that “costs

other than attorneys’ fees shall be allowed as of course to the prevailing party unless

the court otherwise directs.” This rule represents a codification of the “presumption

that the prevailing party is entitled to costs.” Bathke v. Casey’s General Stores, Inc.,

64 F.3d 340, 347 (8th Cir. 1995). Despite this presumption, however, the district court

has substantial discretion in awarding costs to a prevailing party. See Zotos v.

Lindbergh School Dist., 121 F.3d 356, 363 (8th Cir. 1997). We review the district 
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court’s denial of costs for abuse of discretion. See Milton v. City of Des Moines, 47

F.3d 944, 947 (8th Cir. 1995).

There is no dispute that the Department is a “prevailing party” within the

meaning of Rule 54(d). The Department argues that, because of the presumption

favoring an award of costs to the prevailing party, the district court’s discretion to deny

costs is narrow and that costs should be denied only if there is some misconduct or

other action worthy of penalty on the part of the prevailing party. 

As we held in Hibbs v. K-Mart Corp., 870 F.2d 435, 443 (8th Cir. 1989),

however, this argument “overlooks the fact that . . . Fed R. Civ. P. 54(d) [is] phrased

in permissive terms.” Id. at 443. See also Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437, 442 (1987) (“Rule 54(d) generally grants a federal court discretion to

refuse to tax costs in favor of the prevailing party”). We are satisfied that the district

court did not abuse its discretion in denying costs in the circumstances of this case.

V.

Finally, the Department brings a motion seeking revocation of Greaser’s in

forma pauperis status. The in forma pauperis statute, 28 U.S.C. § 1915, is designed

to ensure “that indigent persons will have equal access to the judicial system.”

Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997). The decision of whether

to grant or deny in forma pauperis status under section 1915 “is within the sound

discretion of the trial court” and is reviewed for abuse of discretion. Cross v. General

Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983).

The Department contends that Greaser is not indigent and that her affidavit filed

in support of her motion for leave to proceed in forma pauperis is at best incomplete

and at worst blatantly false. In support of this contention, the Department points out

that Greaser’s affidavit failed to reveal that her husband had earned in excess of 
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$10,000 during the first three quarters of 1997, stating instead that her husband was

“unemployed.” Thus, the Department contends that revocation of Greaser’s in forma

pauperis status is mandated by 28 U.S.C. § 1915(e)(2), which provides, in part:

“[T]he court shall dismiss the case at any time if the court determines that -- (A) the

allegation of poverty is untrue.”

The inaccuracies cited by the Department were brought to the district court’s

attention. The court was therefore aware that Greaser’s financial resources were

understated in her affidavit, but nevertheless found that she was indigent. We conclude

that this finding was not clearly erroneous and that the decision to grant in forma

pauperis status to Greaser was not an abuse of discretion. See Cross, 721 F.2d at

1157.

The judgment is affirmed. The Department’s motion to revoke Greaser’s in

forma pauperis status is denied.

A true copy.

Attest:

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